Summary: Ms X complained about the Council’s handling of a safeguarding investigation and failings in its complaints handling, which caused her frustration and distress. The Council was at fault for a delay in carrying out a further review and should apologise for the injustice caused.

The complaint

1. Ms X complained the Council:
1. wrongly recorded that an allegation she was violent towards a child was substantiated;
2. wrongly excluded her from its investigation in breach of her human rights;
3. delayed in responding to her complaint about this and provided a complaint response that was inaccurate.
2. Ms X has disputed the allegation throughout and said the Council’s finding that it was substantiated was extremely distressing. She was also worried that it might prevent her from working with children in future. In addition, she was put to the time and trouble of pursuing a second complaint to the Council and to us.

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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. 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)
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)

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How I considered this complaint

6. I considered:
• the information provided by Ms X and the Council in relation to this complaint and the previous complaint; and
• relevant law and guidance, as set out below.
7. Ms X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Section 47 enquiries

8. Section 47 of the Children Act 1989 says where a council has reasonable cause to suspect a child is suffering, or is likely to suffer, significant harm, it should make enquiries to enable it to decide whether it should take any action to safeguard and promote the child’s welfare. The enquiries should include talking to the child to ascertain their wishes and feelings. There may be a need for immediate protection whilst the assessment is carried out.
9. Statutory guidance “Working Together to Safeguard Children” gives guidance for councils on section 47 enquiries and assessments.

Parental responsibility

10. All mothers and most fathers have legal rights and responsibilities as a parent, which is known as parental responsibility. This includes the right to make decisions on behalf of the child and to have access to information about the child.

Equality Act 2010

11. The Equality Act protects people from discrimination on the basis of nine “protected characteristics”, which includes pregnancy and maternity. It covers contact with public bodies, including councils.

Human Rights Act 1998

12. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to a fair and public trial or hearing if you are charged with a criminal offence and have to go to court or if a public authority is making a decision that has an impact on your civil rights or obligations (Article 6). Article 6 is a limited right, which means it is a right that can be interfered with in certain circumstances.
13. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
14. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

Complaints process

15. Council A’s complaints process states it will acknowledge complaints within 5 working days and respond to the complaint at stage 1 of the process, which it calls an “Initial Review” within 15 working days. It says at the second stage of the process, which it calls a “Further Review” it will acknowledge the complaint within 5 days and respond within 25 working days. There is no stage 3 to the process. If the complainant remains unhappy after stage 2 they will be referred to us.
16. The corporate complaints policy does not specify who will consider and respond to a complaint at each stage.
17. The Council reserves the right not to pursue a complaint that is frivolous or repetitious.

Background and previous complaint

18. Ms X was living with Mr F, his child, C, and their baby, D. In early December 2018 there was an argument and the police were called. On the advice of the police, since Ms X had no legal right to remain in Mr F’s house, she left with baby D, and went to stay with family in another council area. The police reported the incident to the Council, which I will refer to as Council A.
19. A few days later, Council A received a safeguarding referral that said Ms X had shouted at C and assaulted them, causing them an injury.
20. Council A arranged a multi-agency meeting that was attended by representatives from the police, C’s school and children’s social care. It was agreed the case met the threshold for section 47 enquiries because there was a significant risk of harm to a child.
21. Since Ms X was then living in Council B’s area, Council A asked Council B to consider whether her baby, D, was at risk of harm.
22. Both councils made enquiries. Council B decided there was no evidence to show baby D was at risk of harm and it closed its case in January 2019, although it did not send Ms X its section 47 report until April 2019. Council B shared the information it obtained during its enquiries with Council A. This included Ms X’s views, which were that she had never done anything to hurt C, that she was a victim of domestic abuse from Mr F, that he was making malicious allegations in retaliation for her leaving him. She provided text evidence that Mr F was continuing to harass her, and these were also shared with Council A.
23. As part of its enquiries, Council A spoke to Mr F, who made allegations about Ms X. A police officer and social worker spoke to child C together. Council A concluded the allegations about Ms X were substantiated but it did not need to take further action because she was no longer living with C and did not pose a risk to him. Council A did not tell Ms X the outcome of its enquiries.
24. We have previously investigated Ms X’s concerns about the safeguarding investigation and the way Council A handled Ms X’s complaint about it.
• We found Council A was at fault for not telling her the outcome of its enquiries and it agreed to write to her about this.
• We confirmed Council A did not need to share the safeguarding report because the report was about child C and Ms X did not have parental responsibility for C and therefore was not entitled to personal information about him.
• We also confirmed that although Ms X had recently given birth when the safeguarding referral was made, which was a “protected characteristic” under the Equality Act 2010, Council A’s primary role was to protect C and it had a duty to make enquiries once it was satisfied the threshold for doing so was reached. Council A was aware Ms X had recently given birth and that she said she was a victim of domestic abuse. However, it was Council B which was in direct contact with Ms X and she has not complained about that Council’s actions.

The current complaint

25. Following the previous complaint investigation, the Council wrote to Ms X to tell her the outcome of its safeguarding enquiries. Ms X was unhappy that it had decided the allegations were substantiated and made a fresh complaint about the way the Council handled its investigation in October 2020.
26. She said:
• she was not given details of the allegations against her;
• she was not given an opportunity to defend herself;
• children’s social care had failed to protect baby D;
• its letter dated 8 October 2020 wrongly stated her allegations of domestic abuse were not substantiated and that she had failed to report the domestic abuse to the police; and
• she wanted the record amended to say the concerns were not substantiated.
27. Council A initially refused to consider the complaint on the grounds that it had concluded the matter and our own investigation was complete. After further contacts from Ms X, who said she only became aware of the outcome of the section 47 enquiries in October 2020, and therefore could not raise concerns about that earlier, Council A agreed to carry out a further review in mid February 2020. It wrote to her with the outcome of its review in early March 2020. It said:
• it was not able to disclose full details of its enquiries because it could not give Ms X information about child C, since she did not have parental responsibility for child C. It also stated that we had confirmed this position was correct.
• the section 47 enquiries were undertaken after Ms X had left its area with no intention of returning. Further, her whereabouts were unknown so it could not achieve a full and complete involvement in line with its normal practice.
• the family was not known to Council A before the allegations were made in December 2018, by which time Ms X and baby D had moved to another council area. It was not therefore able to carry out a comprehensive assessment of any risks to baby D and had referred this matter to Council B.
• the October 2020 letter did not mention domestic abuse allegations.
• the information was on child C’s file and there was no file for Ms X. It stood by its decision that the concerns were substantiated, which was based on evidence available at the time. This decision was reached at a multi-agency meeting and was not the view of one social worker. However, it had added a note to the record to state that Ms X did not agree with the outcome to ensure her views were reflected.
28. Ms X was unhappy with Council A’s response and wrote to it again. She said:
• it was not correct to say Council A did not know her whereabouts;
• it was not correct to say when she left Mr F’s home she had no intention of returning. Rather she left to reduce the risk of further domestic abuse. She returned a few days later to collect her belongings. The following day, Mr F made the safeguarding allegation;
• she was unhappy that various professionals had met to discuss her but she was not able to be present; and
• she maintained Mr F had coached C to say she was a child abuser.
29. Council A said its complaints process was completed and referred her to us if she remained unhappy. Ms X complained to us.

My findings

Complaints a) and b)

30. Whether Article 6 applies to this matter depends on whether it involves Ms X’s civil rights, which is a legal matter. The law is clear that Article 6 applies to matters involving a person’s own child, such as contact and residence, which are civil rights. However, this case involves child protection enquiries in which a council’s primary duty is to protect the child. Further, Article 6 is a limited right, which means it can be interfered with in certain circumstances. Therefore, it is not clear that Article 6 applies in this situation.
31. Where Article 6 does apply, councils will need to show they considered the impact of their decision on the person and gave them a right to a review or appeal. In this case, Ms X has made two complaints about the matter to Council A, during which Council A reviewed the information it held and concluded it had reached the right conclusion, based on the evidence it held at the time.
32. In our earlier investigation, we noted that Ms X had spoken by telephone to the social worker leading the section 47 enquiries for Council A and had sent her an email. In addition, the lead social worker spoke by telephone to Ms X’s mother, and considered information from Council B, including Ms X’s views on the situation. Therefore, although Council A did not formally interview Ms X, I was satisfied that it had made sufficient enquiries and was not at fault.
33. Ms X was aware of the allegations through her contacts with Council B. A summary of the concerns raised and some of the conclusions reached were included in the report Council B sent to Ms X in April 2019. Although this did not specify that Council A had substantiated the concerns, it did say Council A believed Mr F was a safe father and was the victim of domestic abuse from Ms X.
34. In its recent complaint response, Council A said that because it did not know where Ms X was it could not ensure her full and complete involvement. This was not correct. It did know where Ms X was living and had asked Council B to carry out an assessment about any risks to baby D. Therefore, although it had not engaged more fully with Ms X directly, she did have an opportunity to contribute to the enquiries through Council B.
35. The lead social worker was entitled to reach a conclusion based on all the evidence available at the time. It is not our role to comment on a council’s decision where we have not found fault in the decision-making process.

Complaint c)

36. Council A initially refused to investigate Ms X’s complaint in October 2020 because it said the matter had been dealt with. This was despite the fact that Ms X was not aware of the outcome of the section 47 enquiries until then so could not complain about that earlier. I consider Council A should have agreed to carry out the further review in October 2020 and not waited until February 2021 before doing so. This delay was fault. As a result, Ms X was put to the time and trouble of pursuing the matter further with the Council.
37. The Council considered the further information Ms X provided to support her further complaint and reviewed its records for the section 47 investigation. Having done so, it was satisfied that its original conclusions were correct. On this basis it was not fault for the Council to decline to carry out further enquiries.
38. There were inaccuracies in the complaint response, as there had been in the earlier complaint response, which led Ms X to be uncertain about whether the matter had been properly reviewed. For example, it was incorrect to say Council A did not know Ms X’s whereabouts. Further, it could have better explained that although it had not carried out enquiries as comprehensively as usual, it had asked Council B to make enquiries directly with Ms X. However, I do not consider this affected the outcome or warrants a formal finding of fault.

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Agreed action

39. The Council will, within one month of the date of the final decision, apologise to Ms X for its delay in carrying out a further review between October 2020 and February 2021.

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Final decision

40. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy that injustice and the Council has agreed.

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Investigator's decision on behalf of the Ombudsman