Decision : Upheld
Decision date : 16 Jun 2022
The Ombudsman's final decision:
Summary: I have not investigated Mr B’s complaints about how the Council facilitated contact with his children, the contents of its assessments or the conduct of the social worker. This is because these matters are subject to court proceedings, or we cannot add to the Council’s own investigation. The Council has explained why it did not use the statutory procedure to investigate Mr B’s complaints. There is fault by the Council in how it dealt with its breaches of Mr B’s personal data, and it has agreed to take the action set out below to remedy this.
- Mr B complains that the Council:
- bullied and coerced him into changing contact arrangements in breach of court orders, and was biased in its dealings with the children so that it ignored evidence that supported him and could have been viewed detrimental to his children’s mother;
- sent his private data to others, some of whom had assaulted him; and
- mishandled his complaint, because it took too long, did not adhere to the statutory complaints process, and misunderstood or ignored information in the complaint.
What I have investigated
- I have investigated Mr B’s complaints about data breach and the Council’s complaint handling. I have not investigated Mr B’s complaints that the Council’s social worker bullied and coerced him or that they were biased in his dealings. I have set out my reasons for this below.
The Ombudsman’s role and powers
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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)
- If we are satisfied with an organisation’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)
How I considered this complaint
- I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement and I have considered comments received before issuing my final decision.
What I found
- Mr B has two children with his ex-partner. The Council had concerns about his ex-partners care for the children and her possible neglect of them, and so started child protection action. During the Council’s dealings Mr B had many issues with its social worker. Mr B complained that the social worker coerced him into changing contact arrangements already subject to a court order; that they was biased against him so they ignored evidence that supported his contact with the children and that was detrimental to his ex-partner; and did not take account of that his ex-partner had been convicted of domestic violence towards him.
- Mr B made an application to the court regarding residency of the children and contact. The court ordered the Council to submit a report and recommendations regarding this. The court asked the Council specifically to give its views on arrangements for the children and how concerns about his ex-partner had been addressed. The court also asked the Council to submit all child protection reports, the notes of meetings and any reports received by the Council from professionals involved with the children.
- Mr B complained to the Council about how the social worker had treated him. He also complained about the contents of the social worker’s reports to child protection conferences and review meetings. He said that the social worker had included confidential information about his mental health in the reports without asking or warning him. The social worker had also on several occasions given Mr B’s email address to two other people involved with the children, both of whom had been convicted of assault against Mr B.
The Council’s data breach policy
- The Council’s policy says that once logged with it, the Corporate Information Governance Team will acknowledge the breach and complete an initial assessment of the severity of the breach and then make appropriate recommendations.
- If the breach is likely to result in a high risk to individual's rights and freedoms then the Council must report this to the Information Commissioner’s Office.
The data breaches
- The Council decided that sharing Mr B’s email address was a data breach and so it reported this to its Information Governance Team in accordance with its policy. The Team carried out a severity assessment. It recognised Mr B is vulnerable but said that it was not likely that that there would be an adverse effect from the breach. The Council recommended that the service manager should:
- review whether there was a greater risk than the Council’s Information Governance Team had concluded;
- apologise to Mr B for the harm and distress;
- review contact details before sending out communications;
- try to use secure email where possible;
- ascertain whether staff had competed training;
- review policies and procedures and update these were appropriate;
- document lessons learned from the breach; and
- report back to the Team that these actions had been completed.
The Council’s complaint handling
- The Council responded to Mr B’s complaint via its corporate complaints procedure. It upheld some of its complaints, and partially upheld others. The Council has completed a review of lessons learned from the complaint. It will discuss the issues with the social worker and identify relevant training.
- The Council could have used the statutory complaints process for dealing with complaints about children services. Under this process the Council would have appointed an independent investigator to decide Mr B’s complaint and make recommendations to the Council for it to consider. It also would have appointed an independent person to observe the investigation and to ensure fairness and independence.
- The Council told Mr B that it had decided not to use the statutory complaints process because this is fundamentally for complaints directly related to the welfare of a child or young person. The Council explained that while it acknowledged that the social worker’s conduct might have implications for the children, Mr B’s complaint was mainly about how the social worker had treated Mr B: using the corporate complaints process allowed the Council to consider complaints about this and complaints more directly related to the children together.
- There is no fault in the Council’s use of the corporate complaints process rather than the statutory complaints process. It is open to the Council to do this where some matters that fall in one process and some in the other. The Council has explained how it considered which process to use.
- Mr B has asked the Council to forward him the minutes of the Child Protection Conference of March 2021. It has failed to do so, and has given Mr B no reason why not. This is fault.
- The Council will within one month of the date of this decision show the Ombudsman it has:
- apologised to Mr B for its shortcomings;
- reconsidered all the breaches of personal data alleged by Mr B, reviewed its severity assessment, and made recommendations to remedy the breach;
- written to Mr B to explain how it has considered the data breaches and the recommendations it has made; and
- sent Mr B the minutes of the Child Protection Conference of March 2021.
- I have completed my investigation. There was fault by the Council causing injustice to Mr B.
Parts of the complaint that I did not investigate
- I cannot investigate Mr B’s complaints about how the Council dealt with contact with the children or the contents of the reports, because these are about matters that have, all will be, considered by a court.
- The Ombudsman’s Guidance on Jurisdiction says that ‘the preparation, collation, and analysis of evidence, including reports written by social workers or other officers for court proceedings (or the use of a report written previously, in subsequent court proceedings) and evidence given by council officers in any proceedings’ are conduct of court proceedings. As such these matters are outside the Ombudsman’s jurisdiction and we cannot investigate.
- I appreciate that the court will not investigate the conduct of the social worker. However, I cannot investigate this without investigating the contents of the social worker’s reports or his actions to facilitate contact. These issues are with the court to consider.
- I also recognise that some of Mr B’s complaints are not part of the assessments. For example his complaint that the Council did not aid his use of an advocate. However, on these issues the Council has already upheld Mr B’s complaint, has apologised to him, and has taken action to make sure the issues does not recur. An investigation by the Ombudsman will not lead to an improved outcome or greater remedy for Mr B.
- We provide a free service, but must use public money carefully. We do not start or continue 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. (Local Government Act 1974, section 24A(6), as amended)
Investigator's decision on behalf of the Ombudsman