Summary: Mrs X complained about the Council’s failure to share a stage two report with her following a children’s statutory complaints procedure investigation and for the failure to carry out the agreed actions from a previous investigation by us. The Council was at fault for the failure to properly consider what aspects of the report could be shared with Mrs X and for the delay in carrying out the recommendations from our previous investigation. It has agreed to apologise and pay Mrs X £500 to acknowledge the distress and frustration caused and to retake the decision on what aspects of the report it can share, considering all relevant factors.

The complaint

1. Mrs X complained the Council has failed to act on our recommendations from a previous investigation (22009577). In particular, it failed to share a report following a stage two children’s statutory complaints procedure investigation with her and has not explained what actions it has taken in relation to any recommendations arising from the report. This has caused her unnecessary distress.

Back to top

The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

Back to top

How I considered this complaint

6. I have considered the information provided by Mrs X and discussed the complaint with her. I have considered information provided by the Council and have spoken with relevant Council officers. I have considered the relevant law and guidance.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

Back to top

What I found

Relevant law and guidance

The children’s statutory complaints procedure

8. The children's statutory complaints procedure is a three-stage procedure set out in law, for councils to follow when looking at complaints about children's social care services.
9. 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.

Section 47 enquiries

10. Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)

Assessing mental capacity

11. The Mental Capacity Act 2005 (the Act) 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.
12. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person's best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person's best interests.

Lasting Power of Attorney

13. The Mental Capacity Act 2005 introduced the "Lasting Power of Attorney (LPA)". An LPA is a legal document, which allows a person ('the donor') to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor's behalf. Any decision has to be in the donor's best interests. There are two types of LPA: property and finance, and health and welfare.

Court of Protection

14. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
15. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:
• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

The Information Commissioner’s Office

16. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

Background

17. Mrs X has two children Y and Z. This complaint concerns Z. Z became a looked after child in early 2019 and was admitted to a Council children’s home. This was a voluntary admission under s20 of the Children Act 1989 at Mr and Mrs X’s request. Z’s behaviour deteriorated and the Council considered it had reached the threshold for Z to live in secure accommodation. Under s25 of the Children Act 1989, secure accommodation is a lawful way to restrict the liberty of a looked after child to protect their welfare. A court decides whether to make the order.
18. From this point the court approved all Z’s placements and moves. Z moved to placement A as a short-term placement until the Council could find a place in secure accommodation.
19. In October 2019 a place became available at placement B, a therapeutic long-term placement in another council’s area. This was unsuccessful and the Council decided again to pursue a place for Z in secure accommodation. Placement B gave notice as it considered it could not keep Z safe and the Council arranged a short term placement with placement C while it sought a secure placement. In June 2020 the Council agreed to move Z to placement D, however the move happened earlier in June than originally planned, on an emergency basis due to placement C giving notice. Z’s mental health deteriorated and in August 2020, Z was admitted to hospital under the Mental Health Act.
20. Z currently lives in a residential setting and is subject to the Deprivation of Liberty Safeguards (formal authorisation to deprive someone of their liberty in their best interests where there is no less restrictive alternative).

Mrs X’s first complaint to us (20 002 484)

21. Mr and Mrs X made several complaints to the Council between August 2019 and October 2020. The Council considered the complaints at stage one of the children’s statutory complaints’ procedure. The Council did not agree to consider all their complaints at stage two of the statutory process so Mr and Mrs X complained to us. The Council then agreed to consider the complaints at stage two.
22. In summary, the complaints Mr and Mrs X made in relation to Z were:
1. The Council withdrew funding for night staff at placement C which led to placement C serving notice.
2. Lack of a planned transition for Z from placement C to placement D.
3. They were not told sooner about a s47 enquiry following a disclosure made by Z.
4. Lack of contact with Z when Z moved to placement D.
5. Three incidents at placement C where Mrs X says the actions of Council officers put Z at risk.
6. Lack of education for Z as a look after child.
7. Lack of therapy for Z as a looked after child. In particular:
1. why had therapy not started sooner,
2. why, when Z was in the Council children’s home, the Council had refused their offer to privately fund therapy,
3. placement B could provide in house therapy but Z did not receive it as the Council refused to fund it and Z was placed on a waiting list in that council’s area. Z moved before receiving any therapy,
4. Z was prevented from receiving therapy as they were not sufficiently settled because of frequent placement moves.
8. Lack of information about investigations into allegations about Z being harmed. This applied to four separate incidents they were informed had happened but they were not updated as to the outcome.
23. The stage two Investigating Officer completed their investigation in February 2022. By this time both children had turned 18. In the stage two report the Investigator noted they had not spoken to Y or Z as part of the investigation. They noted there may come a time when it would be helpful for Z to know more about their time as a child in care, including some of the information in the report. However, in view of Z’s mental health history, they recommended that information should not be shared with Z unless it was deemed by mental health practitioners, working with Z, that it was safe and appropriate to do so.
24. The stage two investigation report contained personal information about the two children. As they were now adults, the Council said it needed their consent to share this information with Mrs X. Y consented to sharing the parts of the report which contained their personal information with Mrs X.
25. The Council carried out a mental capacity assessment and decided Z lacked capacity to decide whether to consent to sharing information with Mrs X. The Council decided it was not in Z’s best interests to share the findings related to Z with Mrs X. The Council’s adjudicating officer decided none of the report related to Z should be disclosed to Mrs X. The Council says the adjudicating officer discussed this with its Information Governance Team, regarding data protection legislation that might allow or prevent the Council sharing the information, but it has no evidence in support of this assertion.
26. After the Council told Mrs X it would not share the stage two report and recommendations with her, she asked the Council to escalate her complaint to stage three of its procedure, by which time she had received LPA for Z’s health and welfare. As part of its consideration, the stage three review panel told the Council Mrs X’s LPA for Z ought to be considered and accepted as giving her authority to view the stage two complaint report. The Council did not share the report with Mrs X. The adjudicating officer’s letter of October 2022, following the stage three hearing, made no reference to the panel’s comments about Mr and Mrs X’s LPA or their request to see the report.

Mrs X’s second complaint to us (22 009 577)

27. In 2022 Mrs X complained to us about the Council's handling of the stage two investigation. She wanted to see the elements of the report relating to Z and evidence the Council had completed the recommendations arising from the report.
28. In April 2023 we found fault in the way the Council had reached the best interests’ decision regarding Z. We asked it to re-take its decision, taking into account all the relevant factors including that Mrs X now had LPA for Z. We also found it at fault for not implementing all the recommendations arising from its investigation.
29. The Council agreed to carry out a number of actions as a result of our investigation. This included, within one month of the date of the final decision, re-taking the decision about whether it was in Z's best interest to share their personal information contained within the stage two report with Mrs X.

The current complaint

30. We contacted the Council to request an update on its progress with the agreed actions. In May 2023 the Council advised the process would take longer than a month and it would not be in Z’s best interests to do this more quickly.
31. In July 2023 Mrs X contacted us. She had not received any contact from the Council about the best interests’ decision. She said she was aware a social worker and Community Psychiatric Nurse had met with Z that month but had not heard anything further. Mrs X wanted to see a full unredacted copy of the stage two report.
32. The Council did not provide us with any evidence to show what actions it had taken to progress the mental capacity assessment so in September 2023 we opened a new complaint. In particular, we considered it had failed to complete the following actions from our previous investigation:
• re-take the decision about whether it was in Z’s best interest to share their personal information contained within the stage two report with Mrs X. We said it should ensure it considered all relevant factors including Mrs X's views and Mrs X's LPA for Z when reaching its decision. It should then share its decision and reasons with Mrs X.
• arrange additional complaints awareness training for relevant staff. We asked it to do this within three months of the final decision.
• within three months of the final decision, so by July 2023, review its procedures for reaching best interest decisions.
33. We made some enquiries of the Council, and it provided us with a note of a meeting in May 2023 between the social worker, Community Psychiatric Nurse and Z. The meeting was arranged to establish if Z was happy for the social worker to carry out the mental capacity assessment. The social worker explained the stage two report had information in it about Z and Z’s experiences and it was important Z was involved where possible in deciding who they wanted to see the information. At the meeting they also agreed the best day of the week to do this and which staff should attend to support Z.
34. The Council provided evidence a social worker visited Mrs X in July 2023. Mrs X’s view was that Z would want to share the report with her as they shared everything. It has also provided notes to show the social worker met twice with Z in July 2023. At the first meeting they discussed the education aspects of the report. The social worker was satisfied Z had capacity to agree to this aspect of the report being shared with Mrs X. The Council shared the education part (22f above) of the report with Mrs X in September 2023.
35. In a further visit later in July 2023 the social worker started discussing the complaints set out at 22 c) and d) above regarding lack of contact following Z’s disclosure. Z was visibly upset and asked to stop the session. Following this the social worker emailed the Community Psychiatric Nurse for their advice on whether it was appropriate to continue with the mental capacity assessment. The social worker has not received a response to this email.

Findings

The mental capacity assessment (MCA) and best interests’ decision

36. The stage two investigation covered a significant number of complaints, some of which related to Z’s actions and behaviours. Z is now an adult. So, it is entirely proper for the Council to have regard to this and to data protection rules and regulations in deciding what it can and should share with Mrs X.
37. We previously found fault in the way the Council took the original best interests’ decision regarding sharing the report with Mrs X. The Council agreed to retake the best interests’ decision within one month of the final decision on the previous complaint. The Council should therefore have done this by May 2023. It did not appoint an officer to start the mental capacity assessment until July 2023, two months after it agreed to complete this action. This delay was fault and caused Mrs X frustration.
38. Since July 2023, the Council has sought to carry out the MCA in line with the agreed actions. Z agreed that the education aspects of the complaint could be disclosed to Mrs X and the Council has actioned this. However, it took two months to do so from July to September. This further delay added to Mrs X’s frustration.
39. The Council has had difficulties progressing the MCA regarding other aspects of the complaint due to its assessment of the impact on Z’s mental health of discussing personal events which occurred during a very difficult time for Z. This is not yet completed. The Council has sought advice from mental health professionals on whether this should continue but has not followed this up. As it feels this information is key to whether it can continue with an MCA, the Council should have followed this up with the Community Psychiatric Nurse when they did not respond in July. Its failure to do so is fault and adds to Mrs X’s frustration.
40. It is for the Council to decide whether it is appropriate to continue with an MCA, bearing in mind the impact upon Z and Z’s mental health, and taking into account relevant information. At this stage, we cannot say it has taken into account all the relevant information it needs as it does not have the opinion of the Community Psychiatric Nurse.
41. However, the Council decided not to disclose any of the report related to Z to Mr and Mrs X. It says this was following consultation with its Information Governance Team but it has not provided any evidence in support of this or what parts of the data protection regulations the Council is relying on.
42. When it shared the education aspects of the stage two report, the Council redacted the rest of it, including the statements of complaints made by, and agreed with, Mr and Mrs X by the Investigating officer. Therefore, this was information Mr and Mrs X already knew, and the redaction was unnecessary.
43. Having considered the complaints made by Mr and Mrs X, and the Council’s investigation, it is evident some of the complaints are complaints by Mr and Mrs X around matters which they claim caused them a personal injustice. Although the complaints relate to Z, they are not complaints on behalf of Z. These include the complaints that:
• Mr and Mrs X were not told sooner about a s47 child safeguarding enquiry following a disclosure made by Z.
• Lack of contact with Z when Z moved to placement D.
• Why, when Z was in the Council children’s home, the Council had refused their offer to privately fund therapy,
• Lack of information about investigations into allegations about Z being harmed that the Council informed them of.
44. The Council has not explained why it cannot share its findings on these important parts of Mr and Mrs X’s complaint. Though it has referred to needing Z’s consent to do so, it has not explained or justified this requirement. Therefore, I am not satisfied the Council has properly taken the decision regarding what information should be shared with Mrs X. This is fault. This has caused Mrs X significant distress and frustration.

Arrange additional complaints training for staff

45. The Council has provided evidence that additional complaints training would be completed in September 2023. This was two months later than agreed in response to the previous complaint. This delay was fault. However, the Council has now completed the training and this caused no injustice to Mr and Mrs X.

Review its procedures for reaching a best interest decision

46. The Council provided us with a copy of a form which staff completed electronically when carrying out a MCA. The form covers the correct process for reaching MCA decisions. We are satisfied the Council has reviewed the process and it is appropriate.

Back to top

Agreed action

47. Within one month of the final decision, the Council has agreed to:
1. apologise to Mrs X and pay her £500 to acknowledge the frustration and distress caused to her by the Council’s flawed actions and decisions. These have led to continued delays in her either receiving the stage two report, or having valid reasons so she could challenge the Council’s refusal;
2. review the stage two report, in consultation with the Council’s Information Governance Team, and shares those aspects of the report where Mr and Mrs X allege fault which caused them an injustice. Where it decides it is unable to meaningfully provide a response due to confidentiality it should explain to Mrs X how it has reached those decisions with reference to the relevant data protection law and regulations. Mrs X will then have the opportunity to approach the ICO if she believes she is being denied information she is entitled to.
3. write again to a relevant Community Psychiatric Nurse for their view on Z’s ability to engage in the mental capacity assessment. Within a further month it should either:
1. If the CPN considers Z is able to engage, it should again ask Z if they are willing to share the parts of the stage two which relate solely to Z’s injustice and specific information that Z’s parents may not be aware of, which are not disclosed as part of 47b) above.
2. If the CPN does not comment or considers Z is not able to engage, about the parts of the stage two which relate solely to Z’s injustice and specific information that Z’s parents may not be aware of, it should write to Mrs X setting out its decision.
48. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

49. I have completed my investigation. There is evidence of fault causing injustice for which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman