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Swindon Borough Council (20 012 393)

Category : Adult care services > Other

Decision : Closed after initial enquiries

Decision date : 30 Mar 2021

The Ombudsman's final decision:

Summary: We will not investigate Mr B’s complaint about the Council’s decision to refer him to the Disclosure and Barring Services (DBS). This is because there is not enough evidence of fault with the actions taken by the Council to warrant an investigation by the Ombudsman. Any injustice caused to Mr B would be as a result of the actions of the DBS. The Ombudsman cannot investigate the DBS and Mr B has a right of appeal against the decision if the DBS decides to bar him.

The complaint

  1. Mr B complained the Council made a referral to the Disclosure and Barring Service (DBS) in connection with a safeguarding investigation. Mr B complains:
  • He was not contacted at the time of the referral and the referral contained wrong and inaccurate information; in addition, he was not informed a referral had been made:
  • He was dismissed from his employment because of a breach of GDPR but the DBS did not say this:
  • The Council relied on false and inaccurate information from a previous council regarding his employment with it which resulted in him losing his employment and financial stability.
  1. Mr B says this has left him with a tarnished name and wants to the Council to accept it should not have referred to DBS, and to advise OFSTED and DBS of this so he can gain employment.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint.

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

  1. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Disclosure and Barring Service. (Local Government Act 1974, sections 25 and 34A, as amended)

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How I considered this complaint

  1. I discussed the concerns with Mr B and considered the information and documentation he provided. I sent Mr B a copy of my draft decision and considered his comments and additional information.

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What I found

  1. Mr B says the Council should not have relied on inaccurate and false information when deciding to refer him to DBS.

The Council responded to Mr B’s complaints. The government has issued guidance to councils on their duties and powers to refer people to DBS. The Council took this guidance into account when deciding to refer Mr B to the DBS, and there was no fault in it doing so. That Mr B believes the Council was wrong is not evidence of fault.

  1. The Council has explained it does not have to inform a person it has made a referral to DBS, and apologised Mr B was initially told it had not made a referral. The Council has explained the criteria it used to make the referral and what it based its decision on. We could not say this is fault. In the absence of fault, we cannot comment on the merits of decisions taken by councils.
  2. Mr B says because the Council referred him to the DBS he cannot gain employment and disagrees with the content and details contained in the referral.
  3. The Council’s decision to refer Mr B to the DBS would only have any effect on his employability if the DBS decided to add him to a barred list. We could not therefore decide the Council’s actions alone caused Mr B injustice. We cannot investigate the DBS. Mr B has a right to appeal the decision of the DBS to the first-tier tribunal. Information about how to appeal can be found on the website below.

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Final decision

  1. We will not investigate this complaint. This is because there is not enough evidence of fault in the Council’s actions and any effect of the matter on Mr B would result from the actions of the DBS not the Council. The Ombudsman cannot investigate the DBS and Mr B has a right of appeal against any decision it might make.

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Investigator's decision on behalf of the Ombudsman

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