Summary: Mr X complains that Mr Y’s placement was not suitable for his needs. There is no evidence of fault in how the Council made its decision that a care placement was suitable for Mr Y and in how it considered safeguarding concerns. There is also no evidence of fault in how the Council reached its decision to start public law outline proceedings. The Council is at fault in how it dealt with Mr X’s complaint as it did not consider it through the children’s services statutory complaints procedure. The Council will apologise to Mr and Mrs X for denying them the opportunity to have their complaint considered through the statutory complaints process and for the frustration caused.

The complaint

1. Mr X complains that Mr Y’s placement was not suitable for his needs as the care provider did not have the experience, facilities and staff to care for Mr Y which put him at risk. In particular:

• staff did not follow Mr Y’s activity planner so he did not receive sufficient mental and physical stimulation or interaction which left him bored and frustrated and caused a deterioration in his behaviour;
• there were numerous safeguarding incidents including Mr Y absconding, breaking furniture, breaking his glasses and staff locking themselves in the office;
• the care provider refused to share incident reports with Mr X;
• there were frequent changes in carers so Mr Y did not receive consistency of care;
• the care provider did not inform Mr X of Mr Y’s medical appointments.

2. Mr X also complains that the Council:

• decided to hold a public law outline meeting without any justification which caused significant distress to him and Mrs X;
• decided to hold a best interests meeting without any prior discussion with Mr and Mrs X and then cancelled the meeting at short notice which caused distress to them.
• failed to consider the numerous safeguarding referrals raised by Mr and Mrs X about Mr Y’s placement which put Mr Y at risk and caused distress to them.

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What I have and have not investigated

3. I have investigated events from June 2021 when the Council started to look for alternative care placements for Mr Y. I have not investigated matters before this date, including Mr Y’s placement at that time, as it was open to Mr and Mrs X to make a complaint to us sooner about those matters.

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The Ombudsman’s role and powers

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 investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
6. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

7. 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)
8. 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.

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How I considered this complaint

9. I have:

• considered the complaint and the information provided by Mr X;
• discussed the issues with Mr X;
• made enquiries of the Council and considered the information provided;
• invited Mr X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Safeguarding

10. Under section 47 of the Children Act 1989, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect.
11. Children in care have an Independent Reviewing Officer (IRO) who is responsible for ensuring councils adhere to children’s care plans. They also chair the child’s statutory review, which normally takes place every six months. These are multi agency meetings where important decisions are made.

Public Law Outline

12. The Public Law Outline (PLO) process takes place when a council is concerned about a child’s wellbeing. It may consider an application to the court for care proceedings unless positive steps are taken to address and alleviate the concerns.
13. The Council’s procedures provide that the decision to initiate the PLO process should be taken by a head of service. The IRO should also consider whether a family should be recommended for the PLO process at regular child in care reviews. A letter before proceedings is the formal written notice that proceedings are likely and should set out the main concerns. It should also schedule a date and time for parents to attend a meeting.

Mental Capacity Act 2005

14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
15. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.

Complaints process

16. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
17. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
18. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
19. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

What happened

20. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.

Background

21. Mr Y is a young person and has autism, severe learning difficulties and epilepsy. He is accommodated by the Council under section 20 of the Children Act 1989. This is a voluntary agreement with Mr and Mrs X.
22. Mr Y attended a residential school until May 2021 when the placement ended. Mr Y then attended another residential school, but the placement broke down. The Council placed Mr Y in accommodation with a care package while it sought a residential school or care placement. The Council moved Mr Y to supported accommodation in November 2021.
23. In October 2022 Mr Y moved to a residential college.

Care placement and PLO

24. The Council looked for care placements for Mr Y at the same time it was looking for a residential college placement for him. Between June and October 2021, the Council identified a number of care placements to Mr and Mrs X which it considered could meet Mr Y’s needs. Further consideration showed some of the placements were not suitable. But the Council’s records note Mr and Mrs X declined places as they considered they would not meet Mr Y’s needs. Mr and Mrs X also restated their wish for Mr Y to attend a residential college.
25. In October 2021, the Council offered a place for Mr Y in supported accommodation which was outside of its area. I shall call this placement A. The care provider’s statement of purpose showed it provided specialist supported living services for service users who had autism, learning disabilities and challenging behaviour. The care provider’s placement matching assessment concluded it could meet Mr Y’s needs. Mr and Mrs X visited the placement with Mr Y’s social worker. The Council’s records note Mr and Mrs X considered the placement to be unsuitable as Mr Y would have to share a bathroom with his carers which could cause illness to Mr Y. The Council’s record of the visit notes it could ask for additional checks of the bathroom and it would be inspected during social work visits. Mr and Mrs X deny they declined the placement due to the bathroom facilities.
26. Officers discussed with a head of service their concerns that Mr and Mrs X had not agreed the care placements offered. The head of service agreed that the threshold had been met for care proceedings and the Council should proceed to PLO. Mr Y’s IRO also sent an email to Mr and Mrs X encouraging them to keep an open mind about the placements on offer.
27. The Council wrote to Mr and Mrs X advising it was considering care proceedings for Mr Y. The letter set out the Council’s concerns in detail. This included that it considered Mr and Mrs X were not working with the Council to agree a suitable placement for Mr Y and were not making decisions in his best interests. The letter listed the placements suggested to Mr and Mrs X and why it considered placement A to be suitable.
28. The Council invited Mr and Mrs X to a PLO meeting and advised them to instruct a solicitor to attend with them. The Council held separate meetings for Mr and Mrs X due to their work commitments. The minutes of the meetings show Mr and Mrs X raised concerns about the accuracy of the letter setting out the Council’s concerns. The Council stopped the PLO process as Mr and Mrs X accepted placement A in late October 2021.

Safeguarding and incidents

29. The Council carried out a placement planning meeting with the care provider and Mr and Mrs X to discuss Mr Y’s transition to placement A. Mr and Mrs X raised a number of concerns about how the placement would be staffed. Mr Y moved to the placement in November 2021.
30. Mr X raised a number of concerns about the care of Mr Y at placement A with the Care Quality Commission (CQC). These included a high turnover of staff, unsafe staffing levels, Mr Y breaking his glasses and being injured during an incident. Mr and Mrs X also raised that the care provider would not share incident reports with them.
31. In response to my enquiries the Council said the care provider sent incident reports to the Council. The Council advised the care provider the incident reports needed to be shared in a timely manner.
32. The Council’s records show CQC contacted the Council to ask if it had investigated Mr and Mrs X’s allegations or if it should make a safeguarding referral.
33. The Council advised it had referred the staffing issues to the Local Authority Designated Officer (LADO) for the council area where Mr Y was based. Records show the LADO took no further action as they considered suitable staffing measures and risk assessments were in place.
34. The Council also advised the CQC that it had visited placement A, had discussions with staff, reviewed incident logs and documents. It concluded that there were no safeguarding concerns.
35. Mr X contacted CQC in June 2022 to report a carer had informed him that Mr Y had absconded from placement A through a gap in the garden hedge. CQC referred the matter to the care provider. The care provider advised that it had spoken to all staff and checked incident reports but could not confirm the incident took place.
36. In late September 2022, CQC notified the Council that Mr and Mrs X had raised further concerns about the care of Mr Y. Mr and Mrs X said he was not being monitored at night. The CQC said it had made a safeguarding referral. The Council responded to the CQC and advised Mr Y was monitored at night by an infrared monitor.
37. The Council carried out a number of child in care visits to Mr Y while he was at placement A. The IRO also visited Mr Y. The Council also carried out quality assurance visits to placement A. No concerns were raised about Mr Y’s wellbeing at the placement.
38. In response to my enquiries, the Council has said the care provider had to use agency staff during the process of recruiting new staff members to ensure safe staffing levels. The Council has acknowledged this was not ideal for Mr Y as he does not always respond well to new people but it was unavoidable.
39. Mr and Mrs X complained to the care provider about it not informing them of a hospital appointment for Mr Y and not taking him to the appointment. The Council has acknowledged that the care provider missed a hospital appointment for Mr Y. The care provider apologised for this error and said it would send out a weekly bulletin of Mr Y’s appointments and activities.

Best interests

40. In February 2022 the Council arranged a best interests meeting for Mr Y to consider his living arrangements. The Council arranged the meeting as Mr Y was over 16 and did not have capacity to make his own decisions. The Council then cancelled the meeting at short notice and held an informal meeting with Mr and Mrs X. I understand this was to explain the best interests process to Mr and Mrs X. The Council held a best interests meeting in April 2022.

Complaint

41. Mr and Mrs X made a complaint about the Council calling the PLO meeting and cancelling the best interests meeting. Mr and Mrs X also raised complaints about staff locking themselves away from Mr Y, the care provider not providing incident reports and their safeguarding concerns. The Council considered the complaint through its corporate complaints process. It did not deal with Mr and Mrs X’s concerns about the care provider as it considered that was a matter for the care provider.

Analysis

Suitability of placement

42. There is no evidence of fault in how the Council decided placement A was suitable for Mr Y. The care provider was a specialist provider for young people with Mr Y’s needs. The care provider carried out a matching assessment to establish how it could meet Mr Y’s needs. The Council also carried out a visit to the placement with Mr and Mrs X and held a placement planning meeting so it was aware of their concerns. So, I am satisfied the Council had sufficient information to decide the placement was suitable for Mr Y’s needs. There is no evidence of fault in how it reached its decision that the placement was suitable.
43. I am mindful that there were a number of recorded incidents with Mr Y while he was at placement A. The incident reports note the reasons for the incident and the care provider’s reflections on what it could do differently. But most were minor incidents and the care provider took action to deal with the issues. So, I do not consider this is sufficient evidence to show the placement was unsuitable for Mr Y.

Safeguarding

44. Mr and Mrs X raised a number of concerns about placement A with CQC which it referred to the Council. The Council has said it did not find sufficient concern to warrant a child protection investigation. The evidence shows the Council investigated the concerns raised by Mr X via CQC. It also appropriately referred Mr and Mrs X’s concerns about staffing to the LADO for the council where the placement is based who also had no concerns. So, there is no evidence of fault in how the Council considered the concerns and made its decision not to instigate a child protection investigation.
45. Furthermore, the Council regularly reviewed Mr Y’s placement through child in care reviews and visits and visits by Mr Y’s IRO. So, the Council would have been aware if there were significant concerns about Mr Y’s welfare and the suitability of the placement.
46. Mr X is concerned that the IRO visited Mr Y with his social worker and he considers there was a conflict of interest. This was a practical arrangement as Mr Y was familiar with his social worker. I do not consider it undermined the IRO’s independence and ability to establish if there were concerns about Mr Y’s placement and welfare.
47. I understand the Council has received further information about Mr X’s concerns about Mr Y absconding from the garden which it is considering. But I will not investigate the matter further. I understand it would be very concerning to Mr and Mrs X if Mr Y did abscond but there is no evidence he came to harm. Placement A also took action to secure the garden area. So, it would not be proportionate to investigate the matter further and I cannot achieve anything for Mr and Mrs X by doing so.

Other concerns about care provided

48. Mr X has said the care provider did not follow Mr Y’s activity planner. The quality assurance inspections noted Mr Y was undertaking a number of activities, so I am satisfied Mr Y was attending activities. It is not proportionate to investigate further if the activities were exactly in accordance with the planner. Further investigation will not achieve anything for Mr Y.
49. The Council has acknowledged the care provider did not always share incident reports with Mr and Mrs X. I also have not seen evidence to show the reports were shared with Mr and Mrs X. On balance, this is fault by the care provider which will have caused frustration to Mr and Mrs X. But this is not sufficient injustice to warrant further action by the care provider.
50. The Council has acknowledged the care provider had to use agency staff which was not ideal for Mr Y. But it is not proportionate for me to pursue the matter further as the staffing concerns were considered when the Council investigated the safeguarding concerns. And, further investigation will not achieve anything for Mr Y.
51. The Council has acknowledged the care provider did not inform Mr and Mrs X of a medical appointment and it did not take Mr Y to that appointment. This is fault. The care provider apologised to Mr and Mrs X for this fault. This is a sufficient and proportionate remedy for the distress caused.

Public Law Outline

52. There is no evidence of fault in how the Council made its decision to move to PLO. The decision was taken by a head of service in accordance with the Council’s procedures. The IRO had also expressed concerns about Mr Y needing to be in settled accommodation as soon as possible. It would have been better if the Council had warned Mr and Mrs X that care proceedings could be considered if they did not agree to a placement. But there was no requirement to warn them so I cannot conclude this amounts to fault.
53. Mr and Mrs X dispute the reasons for the decision to move to PLO as set out in the PLO letter and they raised their concerns at the PLO meeting. The PLO minutes show the Council concluded one of the placements offered was not suitable for Mr Y’s needs. But, on balance, this does not call into question the Council’s decision to move to PLO. The Council were concerned Mr and Mrs X had not agreed to placement A, there was an urgency for Mr Y to move from unsuitable accommodation and it had not found other suitable accommodation. In the circumstances, I cannot conclude, on balance, that the Council’s reasons for moving to PLO were inaccurate or flawed.

Best interests meeting

54. The Council arranged a best interests meeting to consider Mr Y’s living arrangements as he was over 16 at that time and does not have capacity to make his own decisions. The Council then postponed the meeting to give it opportunity to explain the process to Mr and Mrs X. It would have been better for the Council to have explained the process before arranging the meeting. But this does not amount to fault and did not cause significant injustice to Mr and Mrs X.

Complaint handling

55. The Council did not consider Mr and Mrs X’s complaint through the children’s services statutory complaints process. This is fault. Mr and Mrs X’s complaints were about Mr Y’s care so should have been considered through the statutory complaints process. The Council also failed to consider Mr and Mrs X’s complaints about the care provider. The Council commissioned Mr Y’s care placement so it was ultimately responsible for his care. It therefore should have considered those complaints. The faults in the complaint handling denied Mr and Mr X the opportunity to have their complaint considered through the statutory process and will have caused frustration to them.

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Agreed action

56. That the Council will:
1. send a written apology to Mr and Mrs X for denying them the opportunity to have their complaint considered through the children's services statutory complaints procedure and for the frustration caused by not considering their complaints about the care provider. The Council should ensure the apology to Mr and Mrs X is in accordance with our new guidance on remedies for Making an effective apology.
2. by training or other means, remind officers of what complaints should be considered under the children’s services statutory complaints procedure. The Council should also remind officers that it is responsible for care placements so should investigate complaints about those placements.
57. The Council should take the above action within one month of my final decision. The Council should also provide us with evidence it has complied with the above actions.

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Final decision

58. There is no evidence of fault in how the Council made its decision that a care placement was suitable for Mr Y and in how it considered safeguarding concerns. There is also no evidence of fault in how the Council reached its decision to start public law outline proceedings. The Council is at fault in how it dealt with Mr X’s complaint as it did not consider it through the children’s services statutory complaints procedure. The Council has agreed to apologise to Mr and Mrs X for denying them the opportunity to have their complaint considered through the statutory process and for the frustration caused. This is an appropriate and proportionate remedy so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman