Decision : Upheld
Decision date : 05 Jan 2022
The Ombudsman's final decision:
Summary: Mrs X complained about the Council’s actions as part of its child protection enquiries. Mrs X complained a social worker told her husband to leave the house without explaining this course of action was voluntary. She also complained the social worker included inaccurate information in their assessment and acted in an intimidating way towards her. Mrs X says the Council’s actions caused avoidable distress to her and her husband. We found some fault by the Council and the Council has agreed to apologise to Mrs X.
- Mrs X complains about the Council’s actions as part of its child protection enquiries. Mrs X complains a social worker:
- Told her husband to leave the house without explaining this course of action was voluntary;
- Included inaccurate information in their assessment, and
- Acted in an intimidating way towards her.
- Mrs X also complains the social worker breached social distancing rules and that another social worker breached her confidentiality.
- Mrs X says the Council’s actions caused avoidable distress and anxiety to her and her husband. She would like the Council to ensure its social workers fully explain their role and processes to service users when carrying out child protection enquiries.
What I have investigated
- I have investigated the complaints listed at paragraph one. The final section of this statement contains my reasons for not investigating the complaints referred to in paragraph three.
The Ombudsman’s role and powers
- 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)
- We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
- we could not add to any previous investigation by the organisation, or
- further investigation would not lead to a different outcome, or
- there is another body better placed to consider this complaint,
(Local Government Act 1974, section 24A(6))
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- 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)
- Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I have discussed the complaint with Mrs X and considered the information she provided.
- I have made enquiries to the Council and considered the information it provided.
- Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Legislation and guidance
- The Children Act 1989 and statutory guidance ‘Working together to safeguard children 2018’ set out councils’ responsibilities to safeguard children. Councils have a duty to make enquiries where a child is considered to be suffering, or likely to suffer, significant harm. The enquiries must establish the child’s situation and determine whether protective action is required (Section 47 of the Children Act 1989). Significant harm covers the risk of physical, sexual, emotional abuse or neglect.
- Section 47 of the Children Act 1989 places a duty on councils to make such enquiries as they consider necessary to enable them to decide whether to take action to safeguard or promote the welfare of a child in their area.
- If the information gathered by the enquiries substantiates the concerns that the child may remain at risk of significant harm, the social worker will arrange a Child Protection Conference.
- This chronology includes key events in this case and does not cover everything that happened.
- Mrs X lives with her husband, Mr X. Mrs X has three children. In October 2020, the Police told the Council they attended Mrs X’s home following a report of a domestic disturbance. The Police said Mr X had become angry and had injured his hand from smashing a plate.
- The Council was concerned about the welfare of Mrs X and her children and allocated a social worker to consider the case.
- On 23 October 2020, the Council attended a meeting to discuss the concerns raised. It decided to conduct a visit to Mrs X’s home on the same day and prepared an immediate safety plan for Mrs X and her children.
- A social worker visited Mrs X’s home by themselves on 23 October 2020 to implement the safety plan. The Council says the social worker asked Mr X to leave the home while the Council continued with its enquiries.
- Mrs X says the social worker initially told her they were taking her and the children to an alternative address. She says Mr X offered to leave instead and that the social worker agreed to this. Mrs X says the social worker told Mr X they would take her and the children to another address if he did not leave. She says the social worker did not explain that this course of action was voluntary.
- Mr X moved out of the home address on the same day.
- A few days later, the Council attended a strategy meeting to discuss the case and review the safety plan. Following the meeting, the Council continued to make enquiries under Section 47 of the Children Act 1989 and continued to keep the safety plan under review.
- In November 2020, the Council concluded its Section 47 enquiries and determined that an Initial Child Protection Conference was not required. At about the same time, Mr X moved back to the home address.
Mrs X’s complaint
- In January 2021, Mrs X complained to the Council. She said the social worker who visited did not show her any paperwork or a court order to say the children may be removed from the home. Mrs X also complained the social worker did not maintain social distancing with the children and had acted in a bullying and aggressive way towards her. She also complained some of the details within the social worker’s report were incorrect or untrue. These details included the report’s reference to Mr X “smashing the house up”. Mrs X said Mr X only smashed a plate. She said the social worker had also incorrectly reported that one of the children had retrieved a mobile phone from their underwear.
- The Council replied on 16 February 2021. It said it consulted with the Police as part of its Section 47 enquiries and considered Mr X leaving the home was a proportionate response to the concerns raised. It said although the Police did not attend the home visit with the social worker, had Mr X not agreed to leave, or Mrs X and the children had nowhere else to go, the Council would have contacted the Police for support. It said the social worker was concerned about the information they were able to disclose during the visit, and said it was possible they did not thoroughly explain why the Council needed to create immediate safety for the children.
- The Council acknowledged the social worker did not wear a facemask during the home visit. It also acknowledged the children approached the social worker and that social distancing was not maintained. The Council apologised for the social worker not wearing a facemask and said it had told its staff to wear PPE during face-to-face meetings.
- The Council said it was sorry that Mrs X felt the social worker’s manner was bullying and aggressive. It said it would follow up Mrs X’s observations with the social worker as part of their ongoing performance review.
- The Council acknowledged Mrs X’s disagreement regarding some of the details contained within its report. Regarding the allegation that Mr X had “smashed the house up”, it said it had referred to the initial report provided by the Police. It also said it felt the information regarding a mobile phone being hidden in the waistband of one of the children’s underwear had been provided by Mrs X.
- Mrs X escalated her complaint on 10 March 2021 as she considered the Council had not fully addressed her complaint. She complained the social worker had not provided her with any options during the visit and had not explained that Mr X leaving the home was voluntary. Mrs X repeated her complaint the social worker had not maintained social distancing with the children, had acted in a bullying and aggressive manner, and had fabricated parts of the report. Mrs X also complained the Council had breached her confidentiality by disclosing sensitive information about her to a third party.
- The Council replied on 16 March 2021 and said it considered its decision to ask Mr X to leave the property was the right one. However, it acknowledged it was not clear about what would happen if Mr and Mrs X had chosen not to adhere to the safety plan. The Council said it would consider preparing a leaflet to explain its powers under Section 47 and to provide an explanation of parents’ rights.
- The Council apologised for how Mrs X’s experience with social care had made her feel. It confirmed her concerns would be addressed with the social worker as part of the Council’s ongoing supervision process.
- The Council also apologised for disclosing sensitive information about Mrs X to a third party. It said it had notified its Data Protection Team about the breach of confidentiality.
- The Council provided a further response on 7 April 2021 in which it re-iterated its previous response.
- Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.
Analysis – the Council’s explanation to Mrs X
- Mrs X complains the social worker told Mr X to leave the house without explaining this course of action was voluntary. In its response to my enquiries, the Council says the social worker did explain this was a voluntary arrangement. There is therefore a disagreement about what information the social worker provided at the time of the visit.
- I have reviewed the records provided by the Council, but they do not provide evidence of the explanation given to Mrs X at the time of the visit. However, the Council’s response to Mrs X dated 16 March 2021 says, “Section 47 offers social workers a legal framework to ensure we undertake a ‘Duty to Investigate’, and with this there is an expectation social workers will ask parents to undertake certain actions, however you are correct that without a Court Order or Police using their powers we cannot remove children from your care. I accept we need to advise parents of this…”
- The letter goes on to say, “I accept we were not clear about what would happen if you chose not to adhere to our immediate safety plan for your partner to leave the house”.
- The letter therefore acknowledges the Council was “not clear” about explaining the potential consequences of Mr and Mrs X not following its safety plan. I consider this demonstrates the Council did not provide a full explanation to Mrs X at the time of the Section 47 visit, despite its acknowledgment of the need to do so. I have found the Council’s failure to provide this explanation to be fault.
Information in the social worker’s assessment
- Mrs X says the information in the assessment came from her conversations with the Council. However, Mrs X specified several instances within the assessment which she said contained inaccuracies. These were that the social worker reported one of the children produced a mobile phone from their underwear, the assessment wrongly stated Mr X called one of the children “vile” and the assessment referred to Mr X “smashing up the house” when Mrs X said he had only smashed a plate.
- I have reviewed the assessment, and it appears the information regarding the mobile phone was recorded following a conversation between the social worker and Mrs X. This is also the explanation provided by the Council in its complaint response of 16 February 2021. Mrs X says this is not correct and she does not know where this information came from.
- I acknowledge Mrs X’s comments, but I have seen no evidence to establish where the source of this information originated. While I have no reason not to believe Mrs X’s explanation that she did not provide this information, the same applies to the Council’s explanation. Without any independent evidence I am unable to find fault regarding this point.
- Mrs X says the assessment wrongly stated Mr X called one of the children ‘vile’ when he had instead called the child’s behaviour ‘vile’. I have reviewed the assessment and identified two instances relating to this point. The first refers to Mr X’s comments about the child’s behaviour; the second is a comment by the social worker which states Mr X called the child ‘vile’.
- The Council’s case notes do not provide any clarification regarding this matter and I have seen no evidence to verify Mr X’s or the social worker’s comments.
- However, having reviewed the assessment, I consider it is more likely than not the social worker’s comment is a reference to Mr X’s comment about the child’s behaviour, rather than a description of the child themselves. This is because there is no evidence to indicate Mr X described the child as ‘vile’; the only example of this wording is used as a description of the child’s behaviour.
- Based on the above, I consider on the balance of probabilities, the statement in the assessment which says Mr X called the child ‘vile’ is an inaccurate summary of his previous comments. I have found this inaccuracy to be fault by the Council.
- Mrs X says the assessment is inaccurate in stating that Mr X smashed up the house. She says Mr X only smashed a plate and says the assessment makes the situation sound worse than it was.
- Having reviewed the assessment, it makes several references to a plate being smashed and only one reference to the house being smashed up. This is with reference to the initial referral by the Police when they were called to Mrs X’s home. The Council said in its complaint response that it will reference the original information provided to it as part of the initial referral by the Police. I am satisfied this is what it did, and that the assessment goes on to say on several occasions that it was a plate, not the house that was damaged. On this basis, I consider the assessment is not inaccurate in this aspect of the complaint.
The social worker’s actions
- Mrs X says the social worker was aggressive and intimidating towards her, in particular during telephone calls. Mrs X says the calls were made using the social worker’s mobile phone and as a result, they were not recorded.
- The Council said it is sorry for how the experience made Mrs X feel and said it raised her concerns with the social worker to consider any learning and development. However, it said it encouraged “professional challenge” from its social workers when carrying out enquiries regarding child safety.
- I acknowledge Mrs X’s comments. However, I also acknowledge the role of social workers as part of child safety enquiries may appear intimidating to parents due to the sensitive nature of this issue. The evidence provided by both parties does not demonstrate aggressive or intimidating behaviour by the social worker. As a result, there is no evidence to support this aspect of the complaint and I have found no fault by the Council.
- Having found fault in respect of some of Mrs X’s complaint, I must consider if this caused a significant injustice. Mrs X says she felt upset and anxious as a result of the Council’s actions. I acknowledge her comments, but also acknowledge the process of local authorities undertaking Section 47 enquiries is likely to cause distress and upset to the families involved. There is no indication of fault in the Council’s decision to undertake these enquiries. The injustice to Mr and Mrs X therefore is the uncertainty about their rights during the visit, and the distress caused by the inaccuracy within the assessment.
- Following Mrs X’s complaint, the Council has created a leaflet to explain its role and the rights of parents as part of its Section 47 enquiries. While this is a positive step by the Council to ensure similar complaints do not re-occur, I do not consider this adequately addresses the injustice to Mrs X.
- To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
- Provide an apology to Mrs X.
- The Council has also agreed to take the following action within two months of the final decision:
- Create an addendum to the social worker’s assessment to clarify Mr X’s comments were about the child’s behaviour, and
- Share the addendum with those that received the original assessment.
- I have found fault by the Council and the Council has agreed to take the above action to address the injustice caused. I have therefore concluded my investigation.
Parts of the complaint that I did not investigate
- I have not investigated the complaint that a social worker breached social distancing rules. This is because the Council has responded to this complaint and said it cannot draw a conclusion without witnessing what happened. It is unlikely we could add anything to the investigation of this complaint, or that we would come to a different outcome.
- I have not investigated the complaint that a social worker breached Mrs X’s confidentiality. This is because we normally expect someone to refer complaints about data protection to the Information Commissioner’s Office (ICO). I consider there are no good reasons for us to investigate this complaint as the ICO is the appropriate body to investigate this matter.
Investigator's decision on behalf of the Ombudsman