Summary: Mr D complained about historic physical and sexual abuse when he was a child in care and about the way the Council dealt with his complaint. There was fault in complaint handling which has caused injustice to Mr D. The Council has agreed to reconsider whether to exercise discretion to investigate Mr D’s complaint at stage two of the statutory children’s complaint procedure and write to him with the outcome setting out its reasons.

The complaint

1. Mr D complains about historic physical and sexual abuse when he was a child in care. In particular, he complains the Council failed to:
• Consider whether he could return to his birth mother after she withdrew consent to him being in care in the 1970s.
• Properly assess the foster carers he was placed with and later adopted by.
• Support him when the foster carers physically, sexually, racially and emotionally abused him. As a result, he was placed in children’s homes where he continued to be abused.
2. As a result his life has been severely impacted and he has been caused significant trauma.
3. Mr D also complains the Council has failed to deal with his complaint properly.

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What I have and have not investigated

4. I have investigated how the Council dealt with Mr D’s complaint. I have not investigated the substantive elements of his complaint as these events happened prior to the Ombudsman’s establishment in 1974.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
6. The Local Government Act 1974 established our powers. We therefore cannot investigate complaints about events which occurred prior to our existence.
7. 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)
8. 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)
9. 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

10. I spoke to Mr D about his complaint and considered:
• The Children Act Representations Procedure (England) Regulations 2006
• Getting the best from complaints, Statutory guidance for local authorities on children’s service es complaints procedures 2006 (“the Guidance”)
11. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The statutory children’s complaints process

12. The law sets out a three-stage procedure for councils to follow when looking at complaints about children's social care services. The first stage of the procedure is local resolution. At stage two, the council appoints an independent investigator and an independent person who is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by a panel.
13. The Guidance says councils do not need to consider complaints made more than one year after the grounds to make the complaint arose. Local authorities can exercise discretion and review complaints after this time frame if it is deemed reasonable to do so. If a local authority opts not to review a complaint which is over one year old, it should write to the complainant explaining why.
14. We would normally expect the full complaints process to be followed before considering a complaint about it. If both parties agree and the complaint has been upheld at stage two, we can deal with the complaint without the third stage.
15. The Ombudsman would not normally re-investigate the matter unless we consider the independent investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

16. Mr D was taken into the care of the Council when he was born in 1969. He was placed with foster carers. The Court granted an interim adoption order in 1973 and a full adoption order in early 1974 for Mr D to be adopted by the foster family. However, the adoption broke down and Mr D was placed in various children’s homes in Leicestershire from about 1976 onwards.
17. Mr D says he was physically, sexually, racially and emotionally abused in every setting. He says the Council failed to properly assess the foster family and wrongly placed him with them even though one had been in prison and they had already had a child removed because of physical abuse. He also says the Council failed to properly consider whether it would have been possible to place him back with his birth mother, who had objected to the adoption and withdrawn consent for him to be in care.
18. Mr D says racism caused the Council to not treat him as a victim of abuse. Instead, he was dealt with as having out of control behaviour and moved into children’s homes where he continued to be abused.
19. Mr D says being in the Council’s care ruined his life. He has spent time in prison and has been diagnosed with post-traumatic stress disorder.
20. During the 1990s there was a prosecution and conviction of a former council employee. Following this a statutory inquiry was launched about the response to abuse in Leicestershire's children's homes between 1973 and 1986. A number of claims have been made against the Council and compensation was paid to Mr D through his lawyers in the 1990s.
21. After obtaining his care records, Mr D had help from a friend to go through his records to understand what had happened and the decisions the Council had made. He then complained to the Council in January 2021. Due to COVID-19 his complaint was dealt with remotely and there were no in person meetings.
22. The Council replied in September 2021. It did not uphold his complaint. The Council said:
• Mr D’s birth mother had consented to him being placed in foster care. This appeared to be an appropriate plan given the presenting circumstances at that time.
• The foster carers were suitably approved in line with procedures at that time.
• The Local Authority could not be held accountable for the Court’s decision to make an Adoption Order.
• The Council was not able to link the abuse Mr D suffered to failures in practice at that time.
23. The response noted that there were some gaps in the records.
24. Mr D remained dissatisfied and in November 2022 he asked for his complaint to be escalated. The Council’s response on 20 December 2022 said it had considered the statutory children’s complaints process, but “On balance it is not considered that further action can be taken within that framework.”

My findings

25. I cannot investigate Mr D’s complaint about being placed with foster carers prior to 1973 as this was before the Ombudsman had powers to investigate. Nor can I investigate the Court’s decision to make an adoption order, as explained in paragraph 7.
26. As Mr D complained in 2021 about children’s social care services, his complaint should have been considered using the statutory children’s complaint process. This means the Council should have considered whether to exercise discretion to investigate Mr D’s complaint at stage two of the procedure. The Council may decide not to, but it should then write to Mr D explaining why.
27. I find that the Council’s letter of December 2022 does not properly explain why the Council has decided not to exercise discretion to take Mr D’s complaint to stage two. This is fault.
28. I cannot say that if the Council had considered this and explained its decision to Mr D, the Council would have appointed an independent investigator. It may be that due to the time that has passed, and the changes in rules and regulations since the 1970s, an effective investigation is not possible. But he has been caused some frustration and time and trouble about the way his complaint was handled.
29. Mr D says no-one has sat down with him to go through his records and explain the decision making. He feels no-one will take accountability for the abuse he suffered. This sense of injustice is compounded by a lack of explanation about why the Council will not investigate further.
30. I initially recommended that the Council work with Mr D, and any advocate he wishes to use, to explore the various elements of his complaint, look through his records, and see if it would be appropriate to provide a remedy.
31. In response to my draft decision, the Council said it had provided Mr D with multiple opportunities to set out his views orally through telephone meetings during 2022. These were with a senior manager who had undertaken significant work in responding to him seeking to explain the actions taken at the time and how practice would be different now. The Council had also advised Mr D how to make a further claim against the Council but he had not yet taken this forward. The Council was concerned that further meetings were unlikely to resolve Mr D’s complaint.
32. I have therefore changed my view, as I am satisfied the Council has already taken the action I initially recommended.
33. But Mr D has not had a proper explanation about why the Council decided not to exercise discretion to deal with his complaint under the statutory complaints’ procedure. It should therefore reconsider this and write to Mr D with the outcome.
34. If following this, Mr D was still dissatisfied, he could bring any complaints about events after 1974 back to the Ombudsman. We would then consider whether we could or should investigate.

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Agreed action

35. Within a month of my final decision, the Council has agreed to reconsider whether to exercise discretion to investigate Mr D’s complaint at stage two of the statutory children’s complaint procedure and write to Mr D with the outcome setting out its reasons.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman