Summary: Mr X complains that the Council has failed to act on recommendations made by a court-appointed expert in relation to his daughter. Parts of the complaint are outside the Ombudsman’s jurisdiction. The Ombudsman will not investigate the rest of the complaint further as it could not achieve the outcome Mr X is looking for.

The complaint

1. Mr X complains that the Council has failed to act on recommendations made by a court-appointed expert in relation to his daughter and failed to take up specialist advice offered.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), and 34(3), as amended)
3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. For example we may decide not to start or continue with an investigation if we believe:

• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I discussed the complaint with Mr X and considered the information he provided. I considered copies of correspondence the Council provided. I shared my draft decision with the Council and the complainant and considered the comments I received.

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What I found

What happened

9. Mr X has a daughter, Y, now aged 17. Y has been in foster care since 2016 when the Council took care proceedings. During the proceedings Y received a diagnosis of Autistic Spectrum Disorder with a presentation of Pathological Demand Avoidance (PDA). In May 2017 when the court issued the Care Order it approved a therapeutic plan attached to the Order drawn up by a clinical psychologist, Dr P. The plan set out details of therapy to be provided to Y and proposals for reviewing her foster placement and offering her a limited choice of where to live. This included with her parents or other relatives. The judge advised that Mr and Mrs X could return the matter to court if the Council did not follow the plan.
10. The Council engaged a clinical psychologist to provide the therapy. After several sessions Y refused to attend any further sessions. She did not accept her diagnosis. She did not wish her parents to have information about her and did not wish to live with them.
11. In August 2017 Mr X complained to the Council that it was not implementing the plan approved by the court. He said the Council was not working towards re-uniting Y with her family as required and had not put the choices to her about where she wished to live. He disagreed with the Council’s approach to his daughter and felt it was not taking account of her autism.
12. The Council’s complaints team arranged a ‘restorative meeting’ with Mr and Mrs X and social care staff working with Y to discuss the complaint and try to agree a way forward. The agreement was to try and clarify whether Y should see the court order and look at why the therapeutic plan had not progressed.
13. In September 2017 Mr X made a complaint to the Ombudsman. We advised that we could not consider a complaint from him until he had completed the Council’s complaints procedure.
14. By the end of October 2017 Mr X felt the Council had still not made enough progress in putting the therapeutic plan into effect. He made a further complaint to the Council.
15. The Council replied to the complaint in November 2017. It explained it was complying with the plan as far as Y’s expressed wishes would allow. It said it had offered her therapy and sought her views regularly. However she had not expressed any wish to move from foster care and was clear she did not wish to see her parents. It said work with her had not reached the stage where it could put the options for her living arrangements to her. The Council said it remained committed to working with Mr and Mrs X but would not reply to the same points again if they continued to raise them. It advised that if Mr X was unhappy with how the Council had dealt with his concerns he had the right to go back to court.
16. In September 2018 Mr and Mrs X applied to court to discharge the Care Order. They say they were not asking for Y’s foster care to end immediately. What they wanted was for the Council to take more account of what they were saying in relation to planning for their daughter and for the court to “exercise greater control of the situation”. They argued that to enable them to present their case fully to the court, the court would need to see the further expert opinion of Dr P. The proceedings ended March 2019. The Court Order gave Mr and Mrs X permission to disclose the case papers to Dr P in order to seek further advice from her. On that basis the Court allowed them to withdraw their application. The Order set out the questions Mr and Mrs X were to ask Dr P to address in her report. These included:
• whether the therapeutic proposal of May 2017 was still valid,
• if it was, what steps would she recommend the parents and the Council needed to take put the plan into effect,
• any comments on any other issues relevant to Y’s future care needs.
17. Dr P produced her updated report in April 2019. Her view was that Y still need therapeutic support but the focus of the proposal needed to change. Her opinion remained that Y needed to have access to a qualified and skilled professional “who understands the ASD and PDA presentation” but this should not necessarily be to try to get her to accept her diagnosis. She said the therapeutic relationship needed to be driven by Y and she needed to have an opportunity to explore her feelings and understanding of herself. Dr P felt the person had to be presented to Y in the right way, as someone independent of her parents and the Council and not forced on her by the courts. She felt if approached in the wrong way Y was likely to continue to refuse to engage. She noted it was difficult to set a timeframe on the proposal as there was no therapist identified yet to work with Y.
18. In June 2019 there was an exchange of correspondence between the Council and Mr and Mrs X about what the Council had done to act on Dr P’s recommendations. Mr and Mrs X were not satisfied with the response and engaged a solicitor who sent a letter before claim to the Council in July 2019. The solicitor argued that the Council had failed to implement the recommendations in Dr P’s report endorsed by the court in May 2017 and those in the April 2019 report. The action he wanted the Council to take was to work with Dr P to arrange a suitable therapist to work with Y. Mr and Mrs X also sought damages for breach of their right to family life under Human Rights law. They said if they did not receive a positive response they would start Judicial Review proceedings.
19. The Council responded in August 2019 denying the claim and defending its position. It accepted it had not implemented the May 2017 plan in full and explained this was because Y herself had not wished to continue with the therapy sessions. It said she had recently indicated a willingness to do so, provided the therapist did not specialise in autism. The Council denied any unlawful actions or breach of human rights, saying it was seeking to promote and support Y’s welfare in line with its statutory duties towards children in care. The Council also advised that Mr and Mrs X had an alternative remedy to the legal action they proposed. They could go back to the family courts to challenge a breach of the Order made in March 2019 or to re-apply to discharge the Care Order. The Council also suggested it was open to them to return to the complaints procedure. Nevertheless the Council offered to meet with Mr and Mrs X to discuss a resolution in Y’s best interests if they did not pursue their legal action. Mr and Mrs X agreed to meet.
20. In further correspondence between the Council and Mr and Mrs X, the Council confirmed it would be happy to meet the parents and to work with Dr P but only if this was with Y’s co-operation and agreement. The Council said it would need to inform her of the discussions and the threat of legal action. It emphasised it had a duty as her corporate parent to listen to her wishes and act in her best interests. It considered that if it continued to have discussions about Y without her knowledge this would put its relationship with her at risk and may cause it to break down.
21. Mr X made a complaint to the Ombudsman in September 2019. We discussed with him whether he was complaining on behalf of his daughter as well as himself and his wife. He set out his complaint in similar terms to the solicitor’s pre-action letter. He said the Council was unwilling to engage properly with Dr P and that the Council did not fully understand the nature of his daughter’s condition, a position supported by Dr P. Mr X said this meant it was approaching Y in the wrong way. He said Y had been in care for over three years without any justification and without receiving proper support. He felt his family had been destroyed as a result of the Council’s actions. He wanted the Council to:
• implement Dr P’s recommendations,
• compensate him for his legal costs,
• acknowledge and offer compensation for the harm caused by the break-up of his family and do its best to repair it.

Analysis

22. I have not investigated a complaint from Mr X on behalf of his daughter. I do not consider he is a suitable representative to act for her. This is because, whatever her reasons, which Mr X may dispute, she has clearly expressed a wish for him not to see her or have any information about her. Mr X’s complaint is about the Council’s failure to engage Y in therapy appropriate to her diagnosis of autism and PDA. Y herself does not accept this diagnosis and has said she does not wish to see a therapist on that basis. Given these conflicts about key issues in the complaint it would not be appropriate for the Ombudsman to accept Mr X as Y’s representative. This means I cannot consider the impact on Y of any matters Mr X complains about or any remedy for her which he may be looking for.
23. Turning to Mr X’s own complaint, he complains about events dating back to May 2017 when the court approved the original therapeutic plan. I do not consider there are grounds to investigate events going back that far. In my view Mr X could reasonably have complained to us after the Council replied to his complaint in November 2017 declining to investigate further. At that point he was aware of our service as he had contacted us in September 2017. But he did not approach the Ombudsman again until September 2019, nearly two years after the Council’s final response. I see no good reason to lift the 12-month bar and investigate matters from May 2017.
24. I have considered whether I can and should investigate matters from September 2018, which is 12 months before Mr X’s complaint to the Ombudsman. At that point Mr and Mrs X were involved in legal proceedings to try to discharge the Care Order. The issue of what progress the Council had made in implementing Dr P’s therapeutic proposal of May 2017 was before the court as part of the application. The Ombudsman cannot investigate matters that are included in court proceedings.
25. The legal action ended in March 2019 with the Court Order leading to the further report and recommendations from Dr P in April 2019. Mr X complains that the Council has failed to put this plan into effect. In response to their letter before claim the Council’s solicitor advised Mr and Mrs X that as an alternative to Judicial Review proceedings they could go back to court for breach of the March 2019 Court Order. Or they could re-apply to discharge the Care Order. Mr X has told the Ombudsman he could not afford to take Judicial Review proceedings. He may, however, be able to take the legal action the Council suggested. If there is no good reason why he could not go to court, the Ombudsman would not investigate his complaint. It is only the courts that could order the Council to take certain steps.
26. But even if there is good reason not to expect Mr X to go back to court I have to consider what the Ombudsman could achieve by investigating the complaint further. The key issue in the complaint is whether the Council has done enough to engage Y in therapy. It says it has to take account of her wishes and act in her best interests as her corporate parent. There is no dispute about Y’s ability to make her own decisions. The Council says it cannot impose a therapeutic plan on her. Mr X’s view is that it has not approached her in the right way, taking account of her diagnosis. Although the Council is willing to discuss the matter with Mr and Mrs X and Dr P, it will not do so without telling Y about the discussions. This is essentially a dispute about what is best for Y. The Council has considered the matter and explained the reasons for its approach. In those circumstances it is not for the Ombudsman to interfere with the Council’s professional judgement about how to carry out its duties towards Y. The Council’s decisions about its course of action are not in line with Mr X’s view of what is best for his daughter, but that does not mean the Council is at fault.
27. But even if I were to investigate and even if I found the Council was at fault, I do not consider it would achieve a meaningful remedy for Mr X. He says the Council’s actions have resulted in his family being torn apart. It was the court which issued the Care Order. The Ombudsman has no power to question that decision. Since then, Y has made it clear she does not wish to have contact with her parents. I recognise this is painful for Mr and Mrs X and they hope that with a different approach things might have turned out differently. But it is not possible to say that if the Council had done more to try and implement the therapeutic plan, and if Y had engaged with a therapist of the type Dr P recommended, Y would have expressed a different view and the family would have been re-united. So it is unlikely investigating the complaint would achieve the aim of re-uniting the family or the financial remedy for loss of family life that Mr X is seeking. As I cannot look at any injustice to or remedy for Y herself, for the reasons I have explained, an investigation would not achieve other outcomes he is looking for, such as extra support for Y.
28. Mr X is also looking for the Council to reimburse his legal costs. But these costs relate to earlier events and issues that were part of the legal proceedings, rather than the complaint about failure to follow Dr P’s recommendations since March 2019. As explained above, these matters are outside the Ombudsman’s jurisdiction. So again, an investigation could not achieve what Mr X is seeking.

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Final decision

29. I have found that parts of the complaint are outside the Ombudsman’s jurisdiction. I consider that the Ombudsman should not investigate the other parts of the complaint further because it would not achieve the outcome Mr X is seeking. I have therefore discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman