Summary: Mr X complains the Council breached an undertaking on how it would describe certain events to third parties and shared inaccurate information about him. Mr X wants the Council to write to the third parties concerned to say that any information provided that contradicts the undertaking is inaccurate. The Council is not at fault and we cannot achieve the outcome Mr X seeks.

The complaint

1. The complainant, who I refer to here as Mr X, says the Council breached an undertaking that it would answer any future enquiries from employers or regulators with the provision of an agreed statement. He says it later shared inaccurate information about him with a different council and other agencies, which contributed to their decision that he is a safeguarding risk to children. He wants the Council to provide the agencies with the agreed statement and explain that any comments it made contradicting this statement were made in error.

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What I have investigated

2. I have investigated the Council’s actions in relation to the undertaking to provide an agreed statement to third parties.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I considered information provided by Mr X and the Council. I have shared a draft version of this statement with them and have considered their comments before finalising my decision.

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What I found

6. Mr X was employed as a teacher. Over the course of his employment, concerns were raised about his behaviour with pupils and in the classroom. These concerns were raised with the Local Authority Designated officer (LADO) whose role is to consider potential safeguarding concerns relating to the employment of people working with children or vulnerable adults.
7. The LADO called a number of strategy meetings. Minutes of one of these meetings record under the heading “Outcome of Allegation” that the allegation was “substantiated” with the reason given that: “It is clear that [Mr X] lacks professional judgment in respect of his relationship with female students but it does not reach a criminal threshold”. LADOs do not require a criminal standard of proof to find an allegation is substantiated.
8. The school Mr X worked at then wrote to the Council to say that it had undertaken separate investigation of each of the allegations against him and found them all to be “unsubstantiated”. It also provided him with a reference. Mr X asked the Council to amend its records to reflect this.
9. The Council told him it could not change the outcome of strategy meetings to reflect different outcomes from those agreed at the time. However, it proposed in a letter of October 2016 that if a future employer or regulator were to seek information about him, it would say that:
1. Mr X was the subject of LADO meetings;
2. He disagreed with the outcomes;
3. Any concerns were insufficient to warrant a Disclosure and Barring Service (DBS) referral. (The DBS provides a checking service for employers seeking to recruit people to work with children and vulnerable adults);
4. He left his previous employer with a positive reference.
10. Mr X complained to us. He said the failure to amend the records breached his human rights and the Data Protection Act. We said we would not investigate because we were unlikely to find fault with the Council’s actions and could not achieve the outcome Mr X sought.
11. Meanwhile the Council had clarified its position. In communications with Mr X’s lawyers in late 2016 and early 2017 it said the proposed text would not be used in response to every request. It said it had to weigh up the protection of children with Mr X’s right to a private life and it would be inappropriate for the Council to “tie its hands” in relation to future requests for information. It reiterated that it was appropriate to keep a record of the finding on Mr X’s behaviour with female children. It said it would consider informing Mr X if it were proposing to share information about him with a third party but could not guarantee it would do this.
12. In 2020 a third party contacted police with a request for information about Mr X under “Clare’s Law” provisions. Clare’s Law allows certain parties to request disclosure of previous allegations about a person. The police contacted the Council. The Council took part in a strategy meeting attended by the police and third-party agencies including the council of the area in which Mr X now worked and his then employer. The Council disclosed that previous allegations about Mr X had been substantiated. The meeting concluded Mr X was a safeguarding risk, Mr X was sacked from the school where he worked and referred to the DBS.
13. Mr X complained to the Council which said its decision to share information in the context of a formal safeguarding enquiry was appropriate. The Council did not uphold his complaints. Mr X then approached us. He said the Council had breached its undertaking of October 2016 to only share the agreed text. He said he wanted the Council to write to all the third parties it had communicated with in 2020 and share with them its undertaking of 2016. He said he also wanted the Council to state that where information provided contradicted the 2016 undertaking, it had been provided in error.
14. Mr X also complained about the council with which the Council had shared the information. However, he told me that he did not want to progress this complaint and it has been closed.
15. Mr X has made a complaint to the Office of the Information Commissioner (ICO) about the Council’s retention of inaccurate information about him and its provision of this information to third parties. Mr X has told me that the ICO is now investigating this.
16. In response to my enquiries the Council provided details of its communications with third parties about Mr X, including minutes of the May 2020 strategy meeting. The minutes show that information from the police was discussed as well as information from the Council. Mr X’s view is that the police’s information is incorrect, and he has shared correspondence with me which he believes demonstrates this.

Analysis

17. The Council advised Mr X’s lawyers that it could not and would not “tie its hands” in relation to requests for information about Mr X. This contradicted its offer of October 2016 to respond to any enquiries from regulators or employers with an agreed text. The contradiction may have confused Mr X temporarily, however by 2017 the Council’s position was clear. The Council would not commit to withhold information from all interested third parties or to inform Mr X before it made a disclosure. There is no undertaking and therefore no breach of an undertaking.

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Final decision

18. I have closed the complaint with a finding that the Council is not at fault.

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Parts of the complaint that I did not investigate

19. Mr X has made complaints about the police but I am unable to investigate these as the police are outside of our jurisdiction. I did not investigate Mr X’s complaint about the accuracy of the information the Council shared as this is already under investigation by the Information Commissioner’s Office.

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Investigator's decision on behalf of the Ombudsman