Summary: When the Council considers allegations against people who work with children, it applies a higher ‘harm’ threshold than is set out in its online procedure. It is for the Council to decide which threshold to apply, and it has decided that it is the procedure, rather than its approach, which needs changing. It has agreed to take steps to address this. Although the threshold application did not cause
Mrs B an injustice, the Council delayed telling her about its refusal to investigate her allegations. It has agreed to make a payment of £150 to recognise this.

The complaint

1. The complainant, whom I refer to as Mrs B, complains about how the Council responded when she made allegations about staff at her daughter’s school.
2. Mrs B says the Council refused to investigate her allegations, and failed to give a proper reason. She says the Council has decided a threshold of ‘significant harm’ must be met before it investigates allegations against people who work with children, which is higher than the threshold in government guidance. She says this will lead the Council to not look at allegations in future because its threshold is too high. She says the threshold is not clear in the Council’s guidance.
3. Mrs B also complains that there were significant delays in the Council’s communications with her.
4. Mrs B says the school’s actions caused her daughter emotional harm. She also says the Council’s refusal to investigate caused her distress and inconvenience, because she needed to complain about the refusal.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. I considered information from Mrs B and the Council.
9. Mrs B 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

What should have happened?

Working Together to Safeguard Children 2018

10. This document (which is statutory guidance on inter-agency children’s safeguarding) says councils (and other organisations) should have policies in place for dealing with allegations that someone who works with children has:
• behaved in a way which has, or may have, harmed a child;
• possibly committed a criminal offence related to a child; or
• behaved in a way which indicates they may pose a risk to children.
11. Councils should designate a particular officer, or team of officers, to manage and oversee these allegations. These officers are referred to as LADOs (local authority designated officers).

The Council’s “Allegations against staff or volunteers” procedure

12. This procedure is part of the Council’s online safeguarding procedures, which are published by its local safeguarding partnership and are shared with three other councils in the same county. The procedures were amended in December 2019 and July 2020 (although this specific procedure was not). The next amendment date is December 2020.
13. When the Council receives an allegation against someone who works with children, a discussion is held with its LADO to decide whether the allegation meets the threshold for a referral. In order to meet the referral threshold, the allegation must satisfy one or more of the criteria set out in Working Together (paragraph 10, above).
14. If the LADO agrees this threshold is met, they are sent a referral form and they consider whether further (usually multi-agency) investigation is appropriate.
15. In considering further investigation, the Council says the LADO applies the same standard as required for enquiries under section 47 of the Children Act 1989 – that the person’s actions have caused, or are likely to cause, significant harm.
16. The Council says it uses this threshold because it is the threshold for statutory intervention, and because it ensures a proportionate response to allegations. However, the words ‘significant harm’ do not appear in its online procedure.

What happened?

17. In November 2018 Mrs B contacted the Council and made allegations about her daughter’s school. There had been issues with her daughter’s boyfriend and
    Mrs B felt members of staff at the school had put her daughter at risk.
18. The Council officer who received the allegations discussed them with the LADO, and it was decided a referral should be made. This referral was sent to the LADO the following day.
19. The LADO considered the allegations and decided there was no further action required. She recorded that Mrs B’s allegations did “not provide evidence that school deliberately acted with the intention to harm her daughter, or that they acted … negligently”. She said the allegations were a matter for the school’s complaints procedure, as they were “not about staff posing a risk of harm to children”.
20. In January 2019 Mrs B asked the Council if the LADO would consider more information if she provided it. The Council agreed, and the LADO considered this new information before deciding, again, that no further action should be taken. She said, “the information provided greater detail, but nothing that indicated significant harm caused by the school”.
21. At the end of March, the Council realised that Mrs B had still not been informed about the LADO’s decision. It eventually wrote to her in May. It said the school’s actions did not fall into the criteria required for a LADO-led investigation, and were, in fact, matters of school discipline, which the LADO had no remit to consider. The Council apologised to Mrs B for the delay in sending the letter.
22. Mrs B complained to the Council in October, and said the evidence she provided was not properly considered. The Council responded, saying all the evidence was considered, but the LADO’s required threshold of ‘significant harm’ was not met.
23. Mrs B was unhappy with the Council’s response, and, after raising her concerns over the telephone, the Council issued a further response. It acknowledged that its procedure did not clearly outline the threshold its LADO uses. It said it would propose amendments to the procedure and raise them with the local safeguarding partnership’s policy and practice sub-group.
24. In July 2020 the Council told me that, after it sent this response to Mrs B, the Chair of the sub-group resigned, so the group has not met since September 2019. The Council says it still intends to make representations to the group about the amendments it proposed to Mrs B, and will do this at the next meeting.

My findings

The Council’s threshold for investigation

25. The Council’s procedure says its threshold for referring an allegation to its LADO is whether the subject of the allegation appears to have caused ‘harm’. This matches the guidance provided by Working Together.
26. After the referral has been made, the Council says its LADO then decides whether a child has suffered, or is likely to suffer, ‘significant harm’. This, obviously, is a higher threshold.
27. Although Working Together refers to allegations of ‘harm’, it does not appear to prevent LADOs using a higher threshold when they are deciding if further investigation is necessary. So this, in my view, is a matter of professional judgment, and is for the Council to decide, not the Ombudsman. The Council has also given what appear to be fair reasons for applying the higher threshold. Because of this, I am not in a position to question the Council’s approach.
28. However, the Council’s online procedure does not specify that the LADO uses this higher threshold, and the words ‘significant harm’ are not used in the procedure at all. Although other parts of the website go into more detail about abuse thresholds, this procedure does not clearly set out how the thresholds relate to LADO-led investigations.
29. The Council has decided that this is an issue with the procedure, rather than its own approach, and – as I have said above – I will not question that. However, I note that, although the Council told Mrs B last year that it would ask the local safeguarding partnership to make changes to the procedure, it is yet to do so.
30. The reasons for this have not been entirely in the Council’s control – although I note that the online procedures have been updated twice since October. But regardless of who is responsible for the delay, the safeguarding partnership intends to update its procedures again in December 2020. The Council should ensure it proposes whatever changes it considers necessary before then.

The LADO’s decisions

31. I note that both ‘harm’ and ‘significant harm’ were referred to in the LADO’s case notes. As I have said above, I do not believe this approach is necessarily wrong.
32. Even if the threshold ‘harm’ were explicitly applied to the allegations, rather than ‘significant harm’, my view is that this would not obviously be likely to lead to a change in the decision. The LADO’s judgment was that the allegations were more appropriate for the school’s complaint procedures than for a LADO-led investigation, and I do not consider this decision to be unreasonable.
33. Because of this, I see no reason why a new decision should be made.

The Council’s communications

34. Although Mrs B says the Council failed to properly explain the LADO’s refusal to coordinate an investigation into her allegations, in my view this was not the case. Mrs B clearly disagrees with the outcome, but the letter the LADO sent in May 2019 justifies the refusal, and I do not see any reason why there should have been a more detailed explanation.
35. However, it took the Council four months to write to Mrs B after making the decision. This was an unnecessary delay.
36. The Council has already acknowledged the delay and has apologised to Mrs B, which goes some way to remedying her injustice. However, I consider it likely that Mrs B experienced a certain amount of distress from the uncertainty caused by the delay, and – given the nature of the allegations and the issues she was experiencing at the time – my view is that the Council should also make a symbolic payment to recognise this.
37. Our remedies guidance says a remedy payment for distress is often between £100 and £300 (although in cases where the distress was severe or prolonged, more may be justified).
38. I do not consider the distress caused by the delay to have been either severe or prolonged, so the Council should make a payment within the suggested scale.

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Agreed actions

39. The Council has agreed to make a payment of £150 to Mrs B to recognise the uncertainty caused by its delay in telling her about its LADO’s decision. It should do this within six weeks of my final decision.
40. The Council has agreed to ensure that it proposes changes to the local safeguarding partnership’s “Allegations against staff or volunteers” procedure, as it told Mrs B it would in October 2019. It should do this within four months of this decision.

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Final decision

41. The Council was at fault for a delay in telling Mrs B about a LADO decision. The agreed actions remedy her injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman