Summary: The complainant (Mr X) complained about the way the Council recorded information about him in his social care files and about the conduct of his previous Social Worker. He also complained about other social care staff, saying they discriminated against him. We discontinue this investigation as for some issues of this complaint there are bodies better placed to consider it, for others our investigation could not lead to a different outcome. For some issues raised by Mr X we would not be able to achieve his desired outcome. The remaining part of Mr X’s complaint is premature.

The complaint

1. Mr X complains about:
• untrue and inappropriate comments in his social care records;
• behaviour and attitude of the social care staff towards him;
• the social care staff discrimination against him.
2. Mr X says the alleged faults caused him distress and frustration and negatively affected his mental health.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• further investigation would not 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))

4. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

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How I considered this complaint

7. I have reviewed the documents provided by Mr X and the Council as well as notes from the telephone call with Mr X.
8. Mr X 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

Key facts

9. In March 2021 Mr X complained to the Council about some information included in his social care records, requesting removal of all his records. He also complained about the conduct and case notes of his Social Worker.
10. The Council responded in June 2021, apologising for the delay and partially upholding Mr X’s complaint:
• although the Council recognised Mr X’s distress about the content of his records, it did not accept any failings on its part;
• the Council explained it would not be lawful to comply with Mr X’s request to remove all his social care records as they were about health and social care. To address Mr X’s specific concerns the Council suggested adding annotated notes to Mr X’s file to ensure the records are balanced;
• the Council partially upheld Mr X’s concerns about his Social Worker and undertook further investigation;
11. Recognising its failings in some areas of Mr X’s complaint, the Council decided to carry out staff training to avoid similar situations in the future.
12. Mr X brought his complaint to us in November 2021. We referred the matter back to the Council as there was no record of the Council’s final response to Mr X’s complaint.
13. At the end of April 2022 Mr X contacted us again, raising the issues of:
• discrimination from five members of the Council;
• lack of the Council’s response to the most recent complaint.
14. Following the Council’s response in June 2021, on several occasions senior Council’s officers discussed Mr X’s concerns with him and held meetings.
15. In the beginning of May 2022 the Council sent Mr X its final response to his complaint, initially lodged in March 2021:
• the Council confirmed its position about inappropriateness of some comments in Mr X’s social care records, some phrasing lacking sensitivity and a wrongly applied warning marker. The Council offered an apology and assurance the marker has been removed from Mr X’s records;
• the Council did not uphold Mr X’s complaint about the number of professionals involved in his case and explained the reasons for that. The Council accepted, however, it had failed to carry out a proper handover to the relevant teams, especially by making insensitive comments in the handover notes. The Council said it would remind the staff of the importance of using sensitive language;
• the Council explained in detail its reasons for not upholding Mr X’s complaint about his previous Social Worker, but also undertook to seek clarifications from the Social Worker when she is back after a prolonged absence from work;
• in response to Mr X’s request to erase his records the Council upheld its previous position. In addition to amending Mr X’s records with his comments it also restricted access to his records to the professionals actively involved in his care and support. Moreover, the social care team started contacting Mr X ahead of uploading any notes of discussions to his records.
16. In its final response to Mr X the Council listed service improvements undertaken as a direct result of the failings identified during considering Mr X’s complaint.
17. As part of its response to my draft decision the Council confirmed it is in the process of addressing all the issues of discrimination raised by Mr X.

Analysis

18. In his original complaint Mr X raised issues with the Council’s record keeping and his Social Worker’s conduct.

Social care records

19. The Council accepted its failings with the records kept for Mr X, offered apology and other personal remedies such as: amending Mr X’s social care records with his comments, removing a warning marker, restricting access to his records to the professionals directly involved in his care and support and introducing a system of contacting Mr X before uploading any notes of discussions onto his records.
20. The Council also undertook specific service improvements to avoid similar failings in the future.
21. There is nothing else we would be able to achieve for Mr X in addition to what the Council has already done for this part of his complaint.
22. We would not be able to decide whether Mr X’s request to have his records erased should be complied with. Therefore, the Information Commissioner’s Office is better placed to resolve matters about the Council’s record-keeping.

Social Worker’s conduct

23. Mr X complained about specific actions and general attitude of his previous Social Worker.
24. Our role is to look into the Council’s actions as a corporate body, rather than to investigate an individual. If Mr X has concerns about the professionalism or conduct of an individual social worker, he can report his concerns to their professional body, Social Work England.
25. Moreover, Mr X expressed his wish for the Council to take a disciplinary action against his previous Social Worker. We would not be able to achieve this outcome as any disciplinary actions between the Council and its employees are outside our jurisdiction.

New issues raised in April 2022

26. Any new issues, such as conduct of other Council’s officers and alleged discrimination from the Council’s staff, raised by Mr X in his complaint to us at the end of April 2022 have not yet been fully investigated by the Council. I consider the Council should have an opportunity to carry out its own investigation of these issues before we review them.

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Final decision

27. I discontinue this investigation. For part of this complaint the Information Commissioner’s Office and Social Work England are better placed to investigate the matters Mr X complained about. For another part of this complaint further investigation could not lead to a different outcome and we would not be able to achieve what Mr X wants to achieve. Part of this complaint is premature.

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Investigator's decision on behalf of the Ombudsman