Decision : Upheld
Decision date : 08 Dec 2020
The Ombudsman's final decision:
Summary: Ms P complains the Council repeatedly contacted her over a child protection matter that did not concern her, harassing her and violating her right to private and family life. The Ombudsman agrees with the Council it was at fault over this and has recommended an improved remedy for the injustice. But in this case, we will not consider issues about harassment or a breach of human rights as these are matters for a court to decide on.
- The complainant, who I refer to as Ms P, is making a complaint in relation to repeated and unwarranted contact by the Council’s Children’s Services team.
- Ms P alleges that the Council harassed her and violated her right to private and family life. For this reason, Ms P wants the Ombudsman to award her compensation for distress and injury to feelings by reference to the level of award the courts would provide.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
- 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).
How I considered this complaint
- I have reviewed Ms P’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and case law. Ms P and the Council also received an opportunity to comment on a draft of my decision.
What I found
- The Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR) into domestic law. Article 8 of the ECHR provides for the right to respect for your family and private life. Private life has a broad meaning and means you have the right to live your life with privacy and without interference. Family life includes the right to have and maintain family relationships.
- Harassment is both a criminal offence and a civil action under the Protection from Harassment Act 1997. This means that someone can be prosecuted in the criminal courts if they harass you. It also means you can take action against the person in the civil courts.
- Ms P has custody and is the primary caregiver for her adult daughter’s children.
- In February 2020, the police received a report that Ms P’s adult daughter had been the victim of domestic abuse. The police later referred the report to the Council’s Children’s Services team. This led to social workers of the Council to contact Ms P, on a number of occasions, with concerns for the wellbeing and safety of her grandchildren.
- In March 2020, Ms P told the Council that neither the police report or referral involved her or her grandchildren. Further, she said that the alleged incident did not take place at her address and therefore the matter should have no personal bearing on her. Despite explaining this, the Council’s Children’s Services team continued contacting Ms P. For this reason, in mid-March Ms P submitted a formal complaint to the Council alleging she was being harassed by various staff which was violating her right to private and family life.
- In April 2020, the Council upheld Ms P’s complaint and admitted the alleged incident did not involve her or her household. It said the police referral was vague and did not include specific details. Further, the Council admitted that its social workers continuing to contact Ms P about the incident would have caused her distress. The Council later offered Ms P £250 in recognition of that distress.
- In October 2020, Ms P contacted the Ombudsman as she was dissatisfied with the offer of compensation she was offered by the Council.
- The Council has accepted it was at fault for its Children’s Services team repeatedly contacting Ms P in relation to the above incident. It was right to apologise to Ms P and acknowledge the distress she justifiably felt as a result of the repeated contact. In my view, the Council’s fault was not an isolated incident and would have caused Ms P distress over a several weeks. On that basis, I do not consider £250 to be a sufficient remedy and I have recommended a higher payment, as below.
- I recognise Ms P wants compensation by reference to level of award the courts would provide. The Ombudsman is not a court. Our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our financial recommendations are more of a symbolic payment which serves as an acknowledgement of the distress or difficulties a person has been put through.
- In addition, I note Ms P makes allegations of harassment and a breach of the Human Rights Act 1998 by the Council. Both are causes of legal action and adjudication on questions of these usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. Therefore, should Ms L wish to seek a remedy for either harassment or that her human rights have been violated by the Council, it is reasonable that she takes up her case through the courts. In that event, the restriction I described at paragraph four applies.
- Within one month of a final decision, the Council should pay Ms P £400 in respect of distress caused by the fault identified above.
- The Council has accepted my findings and recommended action. However, Ms P has declined the compensation amount on the basis she feels she can achieve a higher amount by seeking a court remedy.
- The Council were at fault with respect to its repeated and unwarranted communications with Ms P. I find this caused her an injustice and have recommended an improved remedy.
Investigator's decision on behalf of the Ombudsman