Summary: There was no fault in the action the Council took after Mrs B alleged that school staff had physically and emotionally abused her daughter. But it failed to deal with Mrs B’s complaints in accordance with its complaints procedure. The Council has agreed to make a payment to Mrs B and to take action to prevent similar failings in future.

The complaint

1. Mrs B complains that the Council failed to properly investigate her complaints about staff abusing her daughter while she was at school.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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

8. Councils have to appoint a Local Authority Designated Officer (LADO) to oversee and manage the investigations of allegations against people working with children.
9. There may be up to three strands in the consideration of an allegation:
• A police investigation of a possible criminal offence;
• Enquiries and assessment by children’s social care about whether a child is in need of protection or in need of services;
• Consideration by an employer of disciplinary action in respect of the individual.

The Council’s procedures

10. The LADO will consult, as appropriate, with children’s social care and/or the police to consider:
• If a SCS [Specialist Children’s Services] or a police response may be appropriate and if a strategy meeting and/or an evaluation meeting needs to be held
• If the allegation should be managed solely by the employer (with the proviso that, if further information comes to light suggesting a child protection response or criminal response may be necessary, then a further consultation will take place).
11. If there is cause to suspect that a child is suffering or is likely to suffer significant harm, the LADO will immediately ask SCS for a strategy meeting to be convened.
12. Following the strategy meeting or in cases where a formal strategy discussion is not considered appropriate because the threshold of ‘significant harm’ is not reached, but a police investigation might be needed, the LADO should nevertheless conduct a similar discussion with the police, the employer, and any other relevant agencies to evaluate the allegation and decide how it should be dealt with.
13. Where an investigation by the police or SCS is unnecessary, or has been completed, the senior manager [headteacher] will need to determine if any further disciplinary or internal investigation is needed. The LADO should discuss with the senior manager who will undertake this and in straightforward cases this would normally be a senior manager in the organisation. However, in some circumstances appropriate resources may not be available, or the nature and complexity of the allegation might require the employer to commission an independent investigation to ensure objectivity.
14. Where investigations are concluded, the LADO should consider convening a review discussion/meeting to share relevant information, categorise the allegation and agree any further action to be taken.
15. The allegation categories are:
• Substantiated: there is sufficient identifiable evidence to prove the allegation.
• False: there is sufficient evidence to disprove the allegation.
• Malicious: there is clear evidence to prove there has been a deliberate act to deceive and the allegation is entirely false.
• Unfounded: there is no evidence or proper basis which supports the allegation being made. It might also indicate that the person making the allegation misinterpreted the allegation or was mistaken about what they saw. Alternatively they may not have been aware of the circumstances.
• Unsubstantiated: this is not the same as a false allegation. It means that there is insufficient evidence to prove or disprove the allegation. The term, therefore, does not imply guilt or innocence.

Background

16. Miss J and her mother, Mrs B, live in the London Borough of Bromley. In February 2017, Miss J was attending a school in Kent for children and young people with physical disabilities or complex medical needs. She was 15 years old at the time.
17. In February 2017, Mrs B complained to the school that Miss J had returned home from school with bruising to her wrists. She named two members of staff who she considered were responsible. Mrs B also complained about various other matters, including the way staff treated and spoke to Miss J on an occasion when she was distressed and in pain.
18. The school referred the matter to the Council. Following a strategy discussion, it was agreed that Miss J’s social worker from Bromley Council and the police would carry out a joint investigation. The school told Mrs B that it would arrange for an external person to carry out an independent investigation of all her complaints, once the police investigation had concluded.
19. In May 2017, Mrs B made another complaint to the school about another member of staff. The school responded that day and said that after speaking to the LADO, they had agreed that the new matter could not be investigated until the police investigation had concluded. It said that Mrs B’s new complaint would be added to the outstanding issues from her earlier complaint and investigated once the statutory external processes had been completed.
20. Mrs B then complained to the Council that its LADO was not following the correct procedures. She said that the Council should investigate and not wait for the outcome of a criminal investigation into other members of staff.
21. A few days later, the police concluded their investigation and decided to take no further action. After discussions with the school and the police, the LADO decided that the allegations against one member of staff were unfounded, and the allegations against the other member of staff were unsubstantiated.
22. The external person investigated Mrs B other complaints and submitted a report to the school’s governing body for consideration. In October 2017, the school’s governing body wrote to Mrs B and explained that the investigation report had categorised her complaints into six broad areas, of which it had partially upheld one. It did not uphold the complaint Mrs B made in May 2017 about a member of staff and it did not refer to the incident where Mrs B alleged that two members of staff had bruised Miss J’s wrists.
23. Mrs B considers the Council should have investigated her complaints itself. She says that the investigator was not independent as he had previously worked for the Council and had dealings with the Headteacher of the school.

Analysis

24. The LADO’s role is not to investigate complaints about people who work with children. It is to:
• Be involved in the management and oversight of individual cases;
• Provide advice and guidance to employers and voluntary organisations;
• Liaise with the police and other agencies; and
• Monitor the progress of cases to ensure that they are dealt with as quickly as possible consistent with a thorough and fair process.
25. In relation to the complaint Mrs B made in February 2017, it was agreed that Bromley Council and the police would jointly investigate the safeguarding concerns, and that the school would appoint an independent investigator to investigate all of Mrs B’s complaints. I have found no evidence of fault in the way those decisions were reached.
26. The complaint Mrs B made in May 2017 was about the way a member of staff treated and spoke to Miss J when she was distressed and in pain. It was the same incident she had complained about in February, but in May she provided further information, including the name of the member of staff involved.
27. The Council’s records show that when the Headteacher of the school contacted the LADO, she gave her view that Mrs B’s new complaint should be placed with the investigator commissioned by the school. The LADO then contacted the officer in charge of the criminal investigation, who confirmed that the school could commence their investigation.
28. The following day, the LADO asked the police to confirm whether the new matters Mrs B was complaining about were a police matter, or whether they should be considered as part of the internal investigation. The Council says the police responded the next day and said that they were not a police matter but a matter for the school to deal with. Miss J was no longer attending the school and so there was no need for a safeguarding plan. Both the police and LADO considered it was appropriate for the allegations to be included with the school’s investigation, which it was told it could commence. I have found no evidence of fault in the way the Council decided that the new matters should be considered by the investigator commissioned by the school.
29. Mrs B did not raise any concerns with the Council about the independence of the person commissioned to carry out the investigation, and so the Council did not have the opportunity to consider this. The Council’s procedures allow schools to carry out investigations of their staff, as long as the investigator is sufficiently separate from the line management of the person subject to the allegation. I do not consider it likely that the Council would have considered it a conflict of interest for a previous Council employee to investigate allegations about the school’s members of staff.
30. The Council did not deal with Mrs B’s complaints in accordance with its complaints procedure. The Council’s complaints procedure says that it will provide a full response within 20 working days, but that if it cannot meet that deadline, it will provide an interim response explaining the reasons for the delay and stating when a full response will be provided and by whom. It says complainants must be kept informed of the progress of the investigation at intervals of no more than 20 days and a full response must be provided within three months. The Council did not provide any interim responses to Mrs B to explain the reason for the delays and it did not provide a full response within three months. It took over seven weeks to respond to her first complaint and twenty weeks to respond to her second complaint. These delays were fault.

Agreed action

31. Within four weeks, the Council will make a payment of £100 to Mrs B to recognise her frustration at the delays dealing with her complaints.
32. Within eight weeks, the Council will investigate the reasons for the delays and will take action to ensure future complaints are properly responded to in accordance with its complaints procedure.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman