Summary: The Council significantly delayed providing Miss B with a copy of her social care records from her time as a looked after child, and it is unlikely that it provided all the records which Miss B was entitled to see. The Council has apologised to Miss B, it is in the process of providing Miss B with all of her records and it has taken action to ensure it keeps a proper record of future disclosures. The Council has agreed to also make a payment to Miss B to remedy her injustice.

The complaint

1. Miss B complains that the Council:
• took four years to provide any of her social care records;
• did not provide all of her social care records;
• failed to investigate her complaint about the amount of information provided;
• neglected her when she was a looked after child; and
• failed to provide her with any support when she moved into a flat when she was 18 years old.

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What I have investigated

2. I have exercised discretion to investigate Miss B’s complaints about her social care records. The last section of this statement explains why I have not investigated Miss B’s other complaints.

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The Ombudsman’s role and powers

3. 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)
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. If we are satisfied with a council’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)
6. 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

7. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Background

8. Miss B is 27 years old. She entered the care system when she was three weeks old.
9. Miss B was adopted when she was 18 months old but the adoptive placement broke down three years later. Miss B says that by the age of 15, she had lived in over 36 different foster placements.
10. Miss B moved to London with her foster parents when she was 15 years old and then into her own flat when she was 18.

The law and government guidance

11. The Care Leavers Regulations 2010 says that a child’s social care records must be kept until the 75th anniversary of the child’s date of birth.
12. Statutory guidance underlines the principles and processes that should be in place in response to requests for access to care records.
13. Requests for access to care files must be made in writing and, if necessary, the care leaver should be supported to do so.
14. When an application has been received from a care leaver, it should be acknowledged promptly and in writing. The care leaver should be informed about the process and procedure, timescales for dealing with such requests and the services that the council is able to provide.
15. Under data protection legislation, a council has a statutory duty to respond to a request for personal data within 40 calendar days, providing the information requested. If the response takes longer, the council may be in breach of the Data Protection Act.
16. The records that are provided should be legible, coherent and well-ordered and enable the care leaver to understand their family background, reason for being in care and what took place during their period in care.
17. Statutory guidance on the complaints procedure for children’s social care complaints states that councils do not need to consider complaints made more than one year after the grounds to make the complaint arose. Councils can exercise discretion and review complaints after this time frame if it is still possible to consider the complaint effectively and efficiently. Decisions should be made on a case by case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it.

Analysis

Provision of social care records

18. Miss B says that it took the Council four years to provide any of her social care records. I have considered the Council’s case notes and see that when Miss B made a verbal request for her social care records in July 2012, the Council advised Miss B to put her request in writing. I have not found any evidence to show that Miss B made a written request for her records before March 2014.
19. The Council provided some of Miss B’s records in March 2015 and some in October 2016. This is over four years after Miss B’s verbal request and two and a half years after her written request. I consider the Council significantly delayed providing Miss B with a copy of her social care records. This was fault and would have caused Miss B distress.
20. Miss B considers the Council failed to provide all of her social care records. The Council says that there is no precise record detailing what information was disclosed. It says that it has made significant procedural changes to the way it manages Subject Access Requests, which includes the implementation of a new case management system which stores the details of disclosures it has made.
21. Given the uncertainty about what records were shared with Miss B, the Council is reconsidering her Subject Access Request to ensure she has all the information she is entitled to.
22. Miss B has provided me with copies of emails which show that she promptly queried why she had not received more information or specific documents when she received some records in October 2016. While it is not possible to be absolutely certain, on the balance of probabilities I consider it likely that the Council did not provide Miss B with all of the social care records she was entitled to see.

Complaint to the Council

23. The Council decided not to investigate Miss B’s complaint about the way it had handled her previous requests to see her social care records. The Council explained that its complaints procedure does not apply when a complaint is submitted more than one year after the grounds for complaint first arose. It said that it decided not to exercise discretion to investigate Miss B’s complaint because of the passage of time which had elapsed between the receipt of her records and the submission of her complaint.
24. I consider it likely that the Council did not investigate Miss B’s complaint because it considered it would have been reasonable for her to complain sooner, and because it did not consider it could investigate the complaint effectively and efficiently due to the passage of time. The Council is entitled to not exercise discretion to investigate for either of these reasons, but it would have been helpful if the Council had better explained its reasons in its decision letter.
25. While the Council did not agree to investigate Miss B’s complaint, it did agree to deal with Miss B’s Subject Access Request, and to support her during and after the process.

Agreed action

26. Within four weeks, the Council will make a payment of £400 to Miss B to recognise the distress she suffered as a result of the failings identified.

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Final decision

27. I have completed my investigation and uphold Miss B’s complaint. There was fault which caused injustice to Miss B. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

Adoption

28. The Council has confirmed that it did not place Miss B with her adoptive parents in 1994 and it was not involved before then. This investigation can therefore not consider Miss B’s complaint about her adoption. Miss B may wish to contact the council which was involved at that time.

Foster care

29. Part of Miss B’s complaint to the Ombudsman is that she was neglected and abused while in foster care. But she has not made a formal complaint to the Council about this.
30. The Council says that should Miss B make such a complaint, it would not be minded to investigate because of the length of time that has passed, and because there is a more appropriate remedy available to Miss B by way of a civil compensation claim. However, the Council has said that it will consider whether it is appropriate or necessary to make a LADO (Local Authority Designated Officer) referral if Miss B provides further information about why she is unhappy with her former foster carers. A LADO referral is made when there are concerns about professionals working with children. The Council has also pointed out that if Miss B considers the actions of the foster carers amount to a criminal act, she can report the matter to the police.
31. I have decided that the Ombudsman should not investigate this aspect of Miss B’s complaint because the Council has not yet been given a proper opportunity to consider and respond to it. I also consider it unlikely that there is a realistic prospect of reaching a sound, fair and meaningful decision after so many years have passed. Miss B may wish to take legal advice about making a civil compensation claim.

Move to independent living

32. The Children Act 1989 requires councils to continue to provide various forms of advice, assistance and guidance to young people over the age of 18 making the transition from care to more independent living arrangements.
33. The documents I have seen show that the Council did provide support to Miss B when she moved into a flat when she was 18 years old. But without further investigation, it is not possible to determine whether the Council provided sufficient or appropriate support. I have decided not to investigate this aspect of Miss B’s complaint because it relates to matters that took place around ten years ago, and I am not confident that we will be able to reach a sound, fair and meaningful decision so many years later.

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Investigator's decision on behalf of the Ombudsman