Decision : Closed after initial enquiries
Decision date : 10 Feb 2020
The Ombudsman's final decision:
Summary: Mr F’s complaint about the Council’s failure to disclose information before he adopted his daughter, and his claim for compensation, are out of time. Even if was not late, the Ombudsman cannot assess Mr F’s claim for loss of earnings. Mr F says what he really wants is information. The Council has invited Mr F to see his daughter’s files.
- Mr F complains the Council failed to disclose relevant medical information before he adopted his daughter, G, more than 20 years ago. He says that if he had been given adequate medical information before G was placed in his care, he would not have adopted her. He asked the Council to pay compensation for lost earnings and other costs he has incurred as G’s carer. The Council declined.
- Mr F complained to the Ombudsman because he is unhappy with the Council’s response to his complaint. He does not believe the Council has told him everything it knows about G’s circumstances. He wants the Council to investigate his complaint further.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered:
- information provided by Mr F;
- information provided by the Council, including its response to Mr F’s complaint and correspondence with his solicitor.
What I found
- Mr F’s adopted daughter, G, has a learning disability and autism. Mr F is a full-time carer for G. He says he would not have adopted G if he had known the extent of her care needs. He alleges the Council misled him about G’s needs.
- Mr F’s complaint against the Council has been running for many years. In August 2017, he instructed a solicitor to pursue a settlement from the Council for his lost earnings and costs incurred caring for G.
- The Council responded to Mr F’s complaint in March 2017 and to his solicitor’s claim in February 2018. The Council’s responses took a long time. The Council says this was because of the complexity of the case and the need to access archived records.
- The Council accepted it failed to inform Mr F and the Adoption Panel of an outstanding test for a genetic condition before Mr F adopted G. The test showed G is a carrier of a genetic condition, but the Council says she does not have the condition itself. The Council said the Adoption Panel was aware G’s development was delayed, but she was expected to catch up. The Council declined to offer compensation. The Council noted G was later diagnosed with autism.
- Mr F is unhappy with the Council’s response. He complained to the Ombudsman in September 2019. He is unhappy with the Council’s response to his request to see G’s records and his request for compensation. He says he is out of time to take legal action against the Council.
- Mr F’s complaint to the Ombudsman is late. He first contacted us in November 2016 when we advised he must complain to the Council before we could consider his complaint. Mr F complained to the Council but then did not contact us again for more than two years after receiving the Council’s response. He instructed a solicitor, but the solicitor was unable to resolve his compliant. Mr F did not contact us for 18 months after the Council rejected his solicitor’s request for compensation. If he was unhappy with the Council’s response, Mr F should have complained to the Ombudsman within 12 months. He did not. His complaint is now out of time.
- Mr F asks the Ombudsman to consider his complaint even though it is out of time. He says his investigations, and caring for his disabled children, took over his life. While I acknowledge Mr F has significant caring responsibilities, he could have complained to the Ombudsman in March 2017. He did not. He instructed a solicitor instead. It is only now that his solicitor has been unsuccessful that he complains to the Ombudsman again. It is too late now.
- Even if Mr F had complained sooner, it is highly unlikely the Ombudsman would have been able to recommend the compensation he seeks. Mr F alleges the Council misled him about G’s needs and he has had to give up work to be her carer. He wants compensation for his lost earnings. Our informal means of investigation are not suited to assess claims for compensation of this nature. While we can make findings about the Council’s actions, and decide whether there was fault, we do not have the expertise to judge the impact of the Council’s fault on Mr F’s employment and financial position. These decisions require specialist judgement and are usually made by the Courts. The Ombudsman is not in a position to assess his claim.
- In response to my comments above, Mr F said I had misunderstood his complaint. He said he did not want the Ombudsman to consider his complaint about events surrounding G’s placement with him over 20 years ago. He simply wanted the Council to respond to his complaint in more detail. He believes the Council has not disclosed information about G, and in particular information which may link her disabilities to her genetic condition. He wants this information so that he can better understand G’s future care needs, and so that he might pursue his settlement against the Council.
- In its final complaint response, the Council advised Mr F to contact its Information Management Team to arrange access to G’s files. Mr F says he did not receive this invitation, so I will send it to him again. Mr F should contact the Council to arrange to see G’s files. If Mr F believes he has not seen all the information he is entitled to, he could contact the Information Commissioner’s Office. The Information Commissioner considers complaints about access to records, not the Ombudsman. In addition, the Health Service may be able to offer advice about G’s future care needs.
- The Ombudsman will not investigate Mr F's complaints – about the issues surrounding G’s placement with him more than 20 years ago, and the Council’s response to his complaint – as they are out of time.
Investigator's decision on behalf of the Ombudsman