This important decision of the Local Government and Social Care Ombudsman (LGSCO) concerns a complaint made by a care experienced young woman about the council’s failure to protect her from harm when she suffered “significant and repeated incidents of abuse” during her time in care. The handling of her complaint by the council was so poor that following stage 2 of the statutory complaints procedure (Children Act 1989), she approached the LGSCO directly instead of requesting a stage 3 review. A significant element of the decision is the LGSCO’s conclusion that the £2,500 remedy offered by the council to the young woman did not reflect the injustice she suffered. Explicit acknowledgement of the council’s failings as a corporate parent and consideration of the young woman’s human rights protected by the European Convention on Human Rights are also notable.
Council increases compensation for failings in care, after LGSCO finds the initial remedy inadequate
The young woman who brought the complaint to the LGSCO became looked after in 2010 at the age of 12. Between 2010 and 2015, she reported rape, physical abuse and emotional abuse to the council. This included allegations of physical and emotional abuse against her foster carers and a report of “a safeguarding incident involving a male staff member” in a residential home.
In August 2018, she made a stage 1 complaint to the council, which was subsequently escalated to stage 2. Her statement of complaint was agreed in early April 2019 and her desired outcome was financial redress from the council. The investigating officer’s (IO) and independent person’s (IP) reports fully upheld 10 of the 12 concerns raised by the young woman, and found, among other failings, that the council failed to ensure she was effectively safeguarded while in its care, that the council did not act quickly enough to remove her from places where she suffered significant harm, and that it failed to secure vital medical and forensic evidence. The investigation reports also detailed challenges encountered by both the IO and the IP in accessing the Local Authority Designated Officer’s (LADO)* records connected to allegations of abuse made by the young woman.
The council responded to the stage 2 report five months later and, in its response, it apologised for the delay, acknowledged the young woman had had ‘some bad experiences and suffered trauma because of those’, and offered her £1,000 remedy for the upheld complaints and delay, and a further £1,500 “to fund therapeutic support to help [her] overcome the trauma she experienced”. At that point, the young woman complained to the LGSCO.
Faults in the handling of allegations against professionals
The LGSCO found the council’s approach of restricting access to the LADO records, which the council said was based on legal advice, significantly hindered the statutory investigation and “was not in the spirit of the statutory guidance for children’s social care complaints”. The council also failed to let the young woman know the outcome of the reports she had made about abuse by her foster carers and the staff member in the residential home or offer her reassurance that her concerns were being taken seriously.
While the LADO records showed that the allegation against staff at the residential home had been found to be unsubstantiated (which the young woman had not been informed about), the LGSCO was not provided with evidence to show that the council completed its statutory actions following the allegations about the foster carers. The LGSCO concluded that “a lack of evidence the council took any action means it did not address or seek to mitigate any continued risk of significant harm the foster carers might be causing to their own children and any foster children placed with them”.
Faults in the handling of the statutory complaints procedure
In line with statutory guidance, stage 2 should be completed within 65 working days, but it took the council 197 working days to let the young woman know the outcome. The LGSCO made clear that such delays and lack of communication could not be excused or justified by personnel changes.
The LGSCO found the council’s adjudication letter (which is the council’s response to stage 2 reports and any recommendations made by the IO and the IP) did not comply with statutory guidance because it did not state what action the council would take to complete the recommendations and when.
The remedy of £1,000 offered by the council, which it said was based on the LGSCO Guidance on Remedies, was found inappropriate by the LGSCO considering the significant injustice the young woman endured as a result of the council’s faults. The LGSCO also concluded that the offer of £1,500 remedy for therapeutic support, which the young woman had not asked for (nor had it been recommended by the IO as a remedy), supported the impression that the council did not see her as “empowered or entitled to say what outcome she wanted”.
Failure to have due regard to human rights
Section 6(1) of the Human Rights Act 1998 requires public authorities to act compatibly with the rights protected by the European Convention on Human Rights. While the LGSCO cannot make decisions about whether a breach of rights protected by the ECHR/Human Rights Act 1998 has taken place, the LGSCO can decide whether or not a local authority has had due regard to an individual’s human rights in how they treated or cared for them.
Both the IO and the LGSCO found the council had failed to have due regard to the young woman’s human rights. This included her rights under Article 3 (prohibition of torture and inhuman or degrading treatment), Article 8 (respect for private and family life) and Article 10 (freedom of expression).
Recommendations and remedies
The faults identified by the LGSCO were significant and “occurred over a protracted period during which [the young woman] was not listened to, taken seriously or protected”.
The LGSCO’s recommendations and remedies included: a written apology from the council for the impact of its faults; financial payment to the young woman of £7,500; providing her with information about the outcome of the LADO investigation into her former foster carers; and producing a detailed action plan for completing all recommendations made by the IO and the IP. The LGSCO also recommended a review by the council of its approach to information sharing in the statutory complaints procedure.
You can read the summary of the LGSCO’s decision and the full report here.
*Local authorities must appoint a designated person – Local Authority Designated Officer (LADO) – to be involved in the management and oversight of allegations against people who work with children. More about this role can be found in Working Together to Safeguard Children.
LGSCO’s guidance on good practice: remedies
While each complaint is judged individually and on its own merits, LGSCO’s guidance on remedies provides a framework for ensuring consistency and fairness. Councils and care providers can draw on this guidance to inform the remedies they offer in their own complaint investigations.
Remedies, which can only be recommended where there is a clear and direct link between a fault that has been identified and an injustice that has been caused, need to be proportionate, appropriate, and reasonable. The key principle followed by the LGSCO is that “the remedy should, as far as possible, put the complainant back in the position he or she would have been in” if it had not been for the (council’s/care provider’s) fault. Where this is not possible, financial redress may be offered. When considering remedies, LGSCO investigators consider, among other factors, the outcome the complainant wants to achieve, the personal injustice that has been caused and the severity of distress, harm or risk experienced by the complainant.
Recommended remedies, which are never designed as a punitive measure but a means of redress, can include a combination of:
~ Review of policy and procedure
~ Practical, remedial actions (e.g. conducting an assessment or a review, paying outstanding allowances)
~ Payment for a quantifiable financial loss
~ Financial redress in acknowledgement of loss of non-monetary benefit
~ Financial redress in acknowledgement of avoidable distress, harm, risk, or other unfair impact
The LGSCO has broad discretion to recommend remedies considered suitable and even though the recommendations made are not enforceable, non-compliance is extremely rare (the LGSCO has powers to issue public reports to draw attention to non-compliance).
You can read the full guidance document here.
You can learn more about the remit of the LGSCO in the July 2020 issue of our legal digest (scroll down to the blue box).