The Ombudsman's final decision
Summary: Mr X complains on behalf of himself and his daughter Ms Y, who has mental health difficulties, about the circumstances in which Ms Y left a family assessment centre during a COVID-19 outbreak. He holds the Council responsible for the decision and says it has failed to recognise the impact of the distress caused. We find that the Council was at fault as found in the statutory children’s social care complaints procedure. Ms Y had a long and distressing journey as a result. But we cannot say Mr and Mrs X contracted COVID-19 as a direct consequence of the Council’s actions. The Council has agreed a financial remedy for the distress caused to the family.
The complaint
Mr X complains on behalf of himself and his daughter, Ms Y. He is not happy with the outcome of his complaint against the Council about the circumstances in which Ms Y, who has mental health problems, left a family assessment centre during a COVID-19 outbreak. He says the Council was responsible for the decision for her to leave and it did not consider the full implications. As a result he says his daughter had a long and distressing journey, and he and his wife contracted COVID-19 after she arrived at their home, with serious long-term consequences. Mr X disputes some of the findings of the independent investigation into the complaint and does not consider an apology a sufficient remedy for the impact on his family of the Council’s actions.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended) We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Council appoints an Independent Investigating Officer to investigate and an Independent Person to oversee the investigation at stage 2. If the complainant is not satisfied with the outcome they can ask for a stage three review by an independent panel. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
How I considered this complaint
I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries, including the complaint documents. I considered the COVID-19 restrictions operating at the time.
Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision. As the residential placement was acting on behalf of the Council in its care of Ms Y and her child, I am giving it an opportunity to comment as well. Mr X, the Council and the residential placement, which was acting on behalf of the Council in its care of Ms Y and her child, had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council and care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
What I found
This complaint concerns events that took place in February 2021, at the time of the third national lockdown due to the COVID-19 pandemic. The rules and government guidance at the time were: People should not leave their home without ‘reasonable excuse’.
If someone had symptoms of COVID-19 with a high temperature or were feeling unwell they should try to stay at home and avoid contact with other people.
If someone tested positive for COVID-19 they should self-isolate for ten days, starting from the day after taking the test.
What happened Mr X’s daughter, Ms Y, has a young child, C. Because of the Council’s concerns about Ms Y’s ability to care for C, it started legal proceedings and obtained an Interim Care Order in November 2020. The court ordered the Council to arrange a parenting assessment at a residential placement. The outcome of the assessment would inform the court’s decision whether to grant a full Care Order.
The Council arranged the placement at a residential centre (‘the Centre’) which had an expertise in supporting people with mental health conditions such as Ms Y’s. The Centre was in another part of the country several hours’ journey from Ms Y’s home in the Council’s area. The placement started in early December 2020 and was due to end on 25 February 2021. The court scheduled a hearing a few days before the end of the placement to discuss the outcome and future plans for C’s care. The plan was to complete the assessment by 11 February to give time to plan for the placement ending. The Centre arranged support for Ms Y from the local community mental health team. Ms Y also attended a parenting course at the Centre.
Following an incident in late December 2020, the Centre issued a warning letter to Ms Y about her behaviour.
In January 2021 there was a placement review to consider an interim assessment report. The report raised concerns about Ms Y’s ability to care for C and protect her from the risk of emotional harm, despite the support being provided. The report was discussed with Ms Y.
Ms Y also signed a contract of expectations with the Council which included meeting C’s basic care needs and not being verbally or physically aggressive to any residents or staff at the Centre.
On 10 February a resident at the Centre tested positive for COVID-19. The Centre put safety measures in place and offered tests to all residents. Ms Y did not agree to take one.
The Centre completed the assessment report on 11 February. The conclusion was that Ms Y was not able to provide consistent and appropriate care for C.
Shortly afterwards Ms Y’s social worker, SW1, left and was replaced by another social worker, SW2.
On 12 February the Centre Manager told SW2 by email that there was an outbreak of COVID-19 at the Centre. She did not pass this information on.
The Council discussed the outcome of the parenting assessment and the next steps. It discussed with the Centre what risks it anticipated when Ms Y learned about the outcome of the assessment and that it would mean she would be separated from her child.
There was a Child in Care Review meeting on 16 February to discuss the outcome of the assessment with Ms Y. Ms Y attended, along with C’s father, the court-appointed Children’s Guardian, social worker SW2, her Team Manager, and the Independent Reviewing Officer from the Council whose role is to look after the interests of the child. Ms Y was very upset about the result of the assessment and the decision that she would have to leave the placement on 25 February, with C moving to a foster placement the following day. SW2 discussed the result of the assessment with her and asked the Centre Manager to go through the report with her. SW2 also advised Ms Y to contact her solicitor. Following the review meeting Ms Y spoke to other residents at the Centre about how unfair she felt the report was. Records show she became distressed and argumentative and threatened to make a scene when her daughter was taken from her.
The events surrounding Mrs Y’s departure from the placement are disputed and form the subject of the complaint. In brief, on 17 February, the day after the Child in Care Review meeting, Ms Y was extremely upset about the decision and became verbally abusive to other residents. Discussions took place between the Centre, SW2, the Team Manager, the Children’s Guardian, Ms Y and her solicitor. The result was a decision for Ms Y to leave the Centre that day and return home by train. How the decision came about is in dispute. I consider the matter in more detail later in this statement.
The journey should have taken around four hours. However Ms Y missed her connection and in fact it took around 11 hours. Instead of going home when she arrived, Ms Y went to her parents, Mr and Mrs X.
The following day the Centre told Ms Y that C had tested positive for COVID-19. Ms Y tested positive later that day.
Mr and Mrs X also contracted COVID-19. Mr X said Mrs X became very ill and was hospitalised, and the infection has had long-lasting effects.
The court granted a full Care Order and C was placed with foster carers.
Complaint While Ms Y was still on her journey home Mr X made a complaint to the Council. He complained about the way Ms Y came to the leave the Centre and about decisions about her journey home. He said SW2 had told Ms Y over the telephone about the outcome of the assessment and that she would have to leave the placement and make her own way home. He said Ms Y was in a state of distress when she left the placement and the Council should have made arrangements for her to travel by taxi. He also said the Centre Manager had told him before Ms Y left that a resident had tested positive for COVID-19. He said he had tried to warn SW2 about this but she did not return his calls.
After receiving the complaint the Council contacted Mr X to discuss it in more detail. The Team Manager sent a written response in early February 2021.
I summarise the complaint and the Council’s response below: That the Council abandoned Ms Y when she failed the assessment. In response the Council gave an account of what happened in the lead-up to Ms Y leaving the Centre and said it hoped this clarified that Ms Y made the decision to leave after consultation with her solicitor.
That the Council acted negligently in sending Ms Y home by public transport on a long and complex train journey when her mental health had been made worse by the news that the Council was taking her daughter into care. Also that it had no contingency plan for when Ms Y found out the news. The Council replied that SW2 had spoken to Ms Y who confirmed she felt fit and well enough to travel and wanted to leave. It said the Council helped her with transport as requested and kept in contact with her during the journey. The following day SW2 spoke to Ms Y again and she did not raise any concerns or complain about the journey or lack of support.
That the Council knew residents at the Centre had tested positive for COVID-19 and yet allowed Ms Y to travel. This put members of the public, as well him and Mrs X at risk. In response, the Council said the Centre did not inform the Council there had been a COVID-19 outbreak at the placement until after Ms Y had left. It said this was unacceptable and it was looking into the matter with the Centre.
Mr X was not happy with the response and took the complaint to stage 2 of the children’s social care complaints procedure. There were five complaint headings. Those relevant to the complaint to the Ombudsman were as follows: Complaint 2. The Council’s decision to allow Ms Y to undertake a long train journey when she was already in a state of great distress demonstrated a disregard for her safety and caused serious and lasting harm to her mental health.
Complaint 4. The Council and Centre failed to act responsibly following an outbreak of COVID-19 by allowing her to travel on an 11-hour journey causing risk to the public Complaint 5. The decision that Ms Y had to leave the Centre immediately resulted in her returning to Mr and Mrs X’s home when it was likely she was already infected with COVID-19, putting them at risk of serious harm.
Mr X said he wanted the Council to recognise its failings and the harm Ms Y and he and Mrs X suffered as a result, including damage to their health. He wanted the Council to apologise for this and demonstrate it had addressed failings in practice at the Centre with the Centre management.
As part of the investigation, as well as speaking to Mr X and reading the case records, the stage 2 investigators interviewed the two social workers involved, SW1 and SW2, the Team Manager, the Centre Manager and the social worker from the Centre who carried out the assessment of Ms Y. They also contacted the officers who had given public health advice to the Centre. They looked in detail at events surrounding the discussion of the outcome of the assessment and Ms Y’s departure from the Centre, as well as the details of her journey home.
The stage 2 report upheld complaint 2 and did not uphold complaints 4 and 5. The independent Investigating Officer (IO) made a number of comments and findings that were critical of the Council’s handling of events. I set out the key points below.
Decision to leave and nature of the journey The Centre Manager believed Ms Y first heard about the negative outcome of the parenting assessment through her solicitor. There was a discussion about it at the Child in Care Review meeting and SW2 also discussed it with Ms Y afterwards.
When Ms Y’s behaviour on hearing the news caused alarm to other residents, the Centre Manager shared her concerns with SW2 and the Children’s Guardian, who. discussed the situation with other professionals involved. The Guardian and SW2 recommended Ms Y should not remain at the placement because of the risk to C and the effect on other residents.
SW2 then received an email from Ms Y’s solicitor saying Ms Y had decided to leave the placement and was asking for help with travel arrangements.
SW2 said she recalled Ms Y saying she had spoken to her solicitor who advised the best solution would be for her to leave.
SW2 had a discussion with her Team Manager about the costs of a taxi journey home, which could be between £500 and £800. The Council decided it would be more cost effective to issue a travel warrant for a train journey.
SW2 said she spoke to Ms Y about the train journey and Ms Y appeared calm and did not object to the proposed arrangements.
The Centre Manger said it was Ms Y’s own choice to leave and she did not put pressure on her. She confirmed that Ms Y did not change her mind when advised about the travel arrangements. However the journey “turned into a nightmare” when Ms Y missed her connection.
The Centre Manager and SW1 expressed concerns to the investigators that the Council had expected Ms Y to travel on such a long journey by train when she was in a state of distress. SW1 commented that the Council had placed Ms Y at the Centre and would have had a duty to bring her home.
The IO and IP were concerned that in deciding how Ms Y would get home, the Council’s “primary consideration appeared to be the costs involved”. They questioned whether Ms Y would have been in a position to give informed consent at the time given her serious mental health diagnosis and the fact that she had recently received distressing news. They felt SW2 and the Team Manager took the decision with only limited knowledge of Ms Y as they had not been involved with her for very long. They said the evidence suggested the journey caused Ms Y unnecessary distress and anxiety. But they did not have the expertise or the remit to comment on whether it would have had a long-lasting effect on the state of her mental health.
COVID-19 considerations The findings and comments included the following.
The Centre Manager told the public health department at the local council about the COVID-19 outbreak at the Centre on 12 February. She received advice in line with government guidelines. The Centre put in place its protocol including isolating residents, restricting use of communal areas and offering all residents tests. Ms Y did not take a test.
The Centre Manager also contacted the officer at the local council’s children’s social care department whose role covered public health. He believed in the circumstances where the Council and the Centre considered there was a risk to the child if Ms Y remained at the Centre, the journey home would constitute ‘essential travel’ and would be exempt from COVID-19 restrictions.
The Centre sent an email to SW2 on same day to tell her about the outbreak. SW2 confirmed she did not pass this information on to her Team Manager or anyone else involved in the case. She acknowledged this was an oversight.
Neither SW2 nor the Centre Manager considered the issue of the incidence of COVID-19 as part of the discussion about Ms Y leaving the Centre. The Centre Manger accepted she had overlooked the issue.
The investigators considered Ms Y had capacity to make her own decisions and made the decision to leave the Centre on the advice of her solicitor. As Ms Y tested positive on 19 February following the outbreak at the Centre on 12 February and had refused a test it was “probable that Ms Y was already infected at the time of her journey”. So there was a “strong likelihood” she passed on the infection to others.
There had been no discussion between the Council and the Centre about where Ms Y would go after leaving the Centre and those involved assumed she would return to her own flat. They were not aware she would go to her parents’ home.
The investigators said it was understandable that when she arrived in a distressed state in the early hours of morning, Mr and Mrs X did not feel able to turn her away and it was likely they caught COVID-19 from her. However they said the Council was not responsible for her decision to go to her parents’ home and she is an adult with capacity responsible for own decisions.
The IO’s stage 2 report recommended that the Council apologise to Ms Y for prioritising cost over her welfare when deciding on the means of travel. The IO hoped the Council would address shortcomings in practice identified in the investigation.
The Council did not agree with the decision to uphold complaint 2. But it noted the importance of sensitive planning when a parent and child placement ends negatively. It said it would remind all team managers about this and instruct them to “apply care and consideration towards the parent, not only the child, at such times”.
Mr X was not happy with the result at stage 2 and the complaint went to a stage 3 Review Panel.
Consideration by the 3 Review Panel The Panel considered complaint 2 in two parts: a) the way in which Ms Y came to leave the Centre and b) the mode of transport. It said the sequence of events surrounding how Ms Y learned of the outcome of the assessment and the decision about her leaving the placement was not clear. But it said as it was not the role of the Panel to re-investigate the complaint it would not investigate the issue further. However it concluded that, whatever the exact sequence of events, the fact is Ms Y left the Centre in state of distress, even though she might have appeared to be calm. It recognised that the Council’s primary duty was towards the child and that was a factor in its decision to bring her and C by car when they first arrived at the Centre. Nevertheless Ms Y was a vulnerable young adult in a state of distress and the Panel felt the Council took an over-rigid view of its responsibilities. The Council deemed Ms Y to have capacity to make her own decisions. But the Panel felt the Council did not properly consider her individual needs. It said it should have taken account of Ms Y’s vulnerability, the length and complexity of the journey involving several changes, as well as the distress she was in on hearing the news about the assessment.
The Panel also considered the COVID-19 element of the complaint. It was critical of SW2’s failure to pass on the information about the outbreak at the Centre to anyone else in children’s social care or to the Children’s Guardian. This meant the Guardian made an uninformed decision when she recommended Ms Y leave the Centre. The Panel also criticised the Council for failing to ensure there was any discussion between Ms Y and SW2 about her plans on returning home. Mr X pointed out to the Panel that Ms Y had not been in her flat for some time and it was likely to be cold and without any food. The Panel noted Mr X accepted it was highly likely Ms Y would have already contracted COVID-19 when she arrived but he felt he could not turn her away when she arrived in the early hours of morning after a long and stressful journey. He argued the risk of passing on the infection to him and Mrs X would not have arisen if Ms Y not been required to leave the Centre when there was an outbreak of COVID-19 there.
The Panel shared the concerns about the fact that Ms Y left the Centre when residents had tested positive for COVID-19. However it took the view that “there were a large number of factors at play in the decision making of all concerned. These factors are so interdependent that the Panel has concluded it is impossible to identify cause and effect”. So it made no findings on complaints 4 and 5.
The Panel raised concerns about the lack of information-sharing. It recommended that the Council carry out an urgent review of events covered in the complaint and share the lessons across the service by the end of December 2021. It said the Council should confirm to Mr and Mrs X when the review was complete.
In its final response to the complaint the Council agreed with the Panel’s findings and recommendations. It confirmed it had told all team managers about the need to ensure the individual needs of both parents and children were carefully considered when ending placements. It apologised that this had not happened properly in this case. It said it had taken action to ensure proper planning and preparation for ending placements would take place. This would be a theme in supervision, team meetings and file audits.
When Mr X complained to the Ombudsman his main concern was the decision for Ms Y to leave the Centre during a COVID-19 outbreak and travel home by train when she was in a fragile mental state.
Analysis Based on the evidence I have seen I consider that the stage 2 investigation was thorough and detailed. It involved interviews with relevant officers and a review of the records. The IP reported that the investigation was open, transparent and fair to all parties. In my view the Review Panel conducted a fair hearing and gave careful consideration to Mr and Mrs X’s views and the arguments they presented. I see no grounds to reinvestigate the complaint. However I can look at the Council’s response to the findings and recommendations. I have also looked at the case records to see if they support the findings made in the investigation so far.
Mr X alleges it was the Council’s decision to send Ms Y home and travel by train. He says this and the failure to take account of her mental state and the incidence of COVID-19 infections at the Centre resulted in extra distress for Ms Y, and in him and Mrs X catching COVID-19 with a serious impact on their health. He said Mrs X had not been able to return to work and he wanted the Council to recompense the family for the loss of income and the distress they suffered.
Like the Review Panel I have also looked at this issue in two parts: the events surrounding the decision to leave the Centre, and the means of transport.
The records confirm that Ms Y was involved in discussions about the result and implications of the assessment. Her distress on hearing the outcome resulted in behaviour that caused concern for the safety and wellbeing of C and other residents at the Centre. The records show Ms Y and several professionals were involved in the discussion which resulted in the view that it would be best for her to leave the Centre. All agreed she needed to separate from C and leave the Centre as her behaviour was having a negative impact on C and other residents. The Centre Manager reported that the situation was becoming unmanageable. The Children’s Guardian advised that Ms Y should leave. Ms Y was threatening to leave the Centre, taking C with her. Her solicitor spoke to her and found she was “quite calm and coming round to the idea of leaving today”. The evidence does not support Mr X’s allegation that Ms Y’s departure was primarily due to SW2 telling her she had to go.
The evidence also shows that on the day of her departure Ms Y’s solicitor asked the Council to consider covering the cost of a taxi as Ms Y “seems ready to leave today and that would not prolong her leaving”. The Council discussed the request but did not agree and instead decided to offer a travel warrant for a train journey and taxis to and from the station at either end. The Panel agreed with Mr X that in reaching this decision the Council did not properly consider Ms Y’s vulnerable state, the complexity of the journey with several changes, and that she would be carrying her belongings. The Council has not disputed the Panel’s findings on this point and I have no reason to disagree with them.
The investigation also found, and the Council has accepted, that there was a failure to take account of the COVID-19 outbreak. It is likely Ms Y already had the infection when she set out on the journey. If the Council had taken proper account of the COVID-19 cases at the Centre I cannot say on balance this would have resulted in a decision for her not to leave. I say this because of the advice the public health officials gave the Centre, the consensus among all the professionals involved about the need to remove Ms Y, and Ms Y’s own agreement that she would go.
However in my view it is likely that if the Council had considered the matter properly it would not have arranged for Ms Y to travel on public transport. The Council has accepted it did not properly consider Ms Y’s own needs as a vulnerable person in a distressed state. Also the Team Manager was not aware when deciding on how Ms Y should travel that there were COVID-19 cases at the Centre because SW2 had not passed on the information. The Centre’s records show that Ms Y was resistant to complying with COVID-19 safety measures. If the Council had properly taken account of the COVID-19 issue in my view it would have considered it irresponsible to the public to facilitate her travel on public transport. The evidence suggests the reason for the decision to issue a travel warrant rather than arrange individual transport such as a taxi was because it was more cost effective. It seems likely that if the Council had properly considered the matter, these other factors would have overridden the concern about costs. This would have avoided the ‘nightmare’ journey Ms Y experienced. I agree with Mr X that an apology from the Council is not a sufficient remedy for the distress the journey caused Ms Y.
I consider that the Council was also at fault in failing to consider where Ms Y would go on her return and help prepare her for her return. There is evidence that the Council contacted Ms Y’s mental health team in the Council’s area to ask it to provide support when she returned. But I have not seen evidence of any discussion with Ms Y about what would happen when she arrived back home. However I could not say Ms Y would not have chosen to go to her parents in any event. She took the decision not to take a COVID-19 test when the Centre offered her one. If she had tested herself and found she was positive before leaving the Centre I do not know if she would have gone to her parents or not and if they would have decided to take her in knowing she had the infection. I agree with the Review Panel that there are too many interconnecting factors to consider to be able to say that the Council was responsible for Mr and Mrs X contracting COVID-19.
Overall my conclusion is that the Council was at fault, as the stage 2 investigation and stage 3 review found, in failing to take proper account of all the circumstances, including Ms Y’s vulnerability, mental health condition, her state of distress, the complexity of the journey and the incidence of COVID-19 at the Centre when it made the travel arrangements. Where we find fault we can recommend action by the Council to recognise the impact on the complainant arising as a direct result of the fault. We may recommend symbolic payments to recognise distress. In this case my view is I cannot reasonably say on balance that the Council was directly responsible for Mr and Mrs X’s illness and the consequences of that. However the faults resulted in significant additional distress for Ms Y travelling on a long and difficult journey when she was already in a fragile mental state. Mr and Mrs X also suffered distress and anxiety knowing their daughter was travelling unaccompanied in these circumstances. I agree with Mr X that the Council has not yet provided a suitable remedy for the impact of its failings.
Agreed action
I recommend that to recognise the avoidable distress caused by its failings, the Council should write separately to Ms Y and Mr X to: apologise for the failings found; offer a payment of £1,000 to Ms Y; and offer a payment of £300 to Mr and Mrs X.
These figures are based on the Ombudsman’s guidance on remedies for distress.
The Council will provide us with evidence it has complied with the above actions.
Final decision
I have found there was fault by the Council causing injustice to Ms Y and to Mr and Mrs X, for which the Council has not yet provided an appropriate remedy. I am satisfied that the action the Council has now agreed to take is a suitable remedy and so I have completed my investigation.
Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
Investigator's decision on behalf of the Ombudsman