Summary: Mr D complained about the Council’s actions following a child protection referral. There was delay in the complaint process. The Council has agreed to apologise to Mr D and remind officers of its duties. There was no fault in the way the Council carried out the safeguarding enquiry or produced child protection plans. The information commissioner is best placed to consider the complaint about alleged data breaches.

The complaint

1. Mr D complained about the Council’s actions following a child protection referral in September 2021. In particular, that the Council:
1. Made untrue allegations about him and fabricated false information about him in its child and family assessment.
2. Failed to gain his consent before requesting or using his information.
3. Wrongly included in the child protection plan that he should attend a programme for perpetrators of domestic abuse.
4. Failed to share the social worker’s child protection conference report with him within the required timescales.
5. Took too long to deal with his complaint.
2. Mr D says as a result he has been caused significant stress, did not see his children for a year, and the family cannot live together in their home.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We provide a free service but must use public money carefully. We may decide not to continue with an investigation if we decide there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6))
7. 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)

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How I considered this complaint

8. I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The statutory guidance “Working Together to Safeguard Children”.
• The statutory guidance “Getting the best from complaints”.
• The Ombudsman’s guide for practitioners on the children’s statutory complaints procedure.
9. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Child protection

10. Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
11. Harm means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another. (Children Act 1989, section 31(9))
12. When a council has concerns about a child, the law requires it to take action to find out more. It only has to have ‘reasonable cause to suspect’. This is a lower burden of proof than that used by the Police or the Courts who require evidence ‘beyond reasonable doubt’.
13. When cases involve parallel criminal and child protection investigations, a police investigation will focus on whether there is sufficient evidence to prove beyond reasonable doubt that a crime has been committed. Child protection enquiries seek to find out, on the balance of probabilities whether a child is at risk of significant harm.

Acting on a child protection referral

14. Anyone who has concerns about a child’s welfare should make a referral to children’s social care. The council will make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, and schools. It will then decide whether to convene a strategy meeting. The strategy meeting will decide whether to start safeguarding enquiries under section 47 of the Act.
15. If the safeguarding enquiry finds that the child is suffering, or is likely to suffer, significant harm the council must convene an initial child protection conference (ICPC) within 15 working days of the strategy meeting.
16. The ICPC is a multi-agency body consisting of people who have a significant contribution to make due to their knowledge of the child and family or their expertise relevant to the case.
17. The council should provide a report to the ICPC summarising the safeguarding enquiry and any information in existing records relating to the child and family. The report should be provided to parents at least two working days in advance of the conference.
18. The ICPC decides what action is needed to safeguard the child. This may include a recommendation that the child should be supported by a child protection plan. The Ombudsman considers that councils should follow the recommendations of the ICPC unless there are good reasons not to.

Information sharing

19. The Information Commissioner has been given a specific remit to investigate complaints about alleged breaches of the Data Protection Act 1998 and it has powers to take enforcement action if a breach is found.
20. The Working Together statutory guidance says that the Data Protection Act 2018 and the General Data Protection Regulation do not prevent the sharing of information for the purposes of keeping children safe. It is not necessary to seek consent to share information if it is likely to assist in safeguarding and promoting the welfare of a child.

Children’s statutory complaints procedure

21. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two.
22. At stage two of the procedure, the council appoints an independent investigator and an independent person (who is responsible for overseeing the investigation). Councils have up to 65 working days to complete stage two of the process from the date the statement of complaint is agreed. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
23. The guidance lists who may complain using the statutory procedure. The council does not need consent from the child or young person to investigate a complaint from a person on this list. However, it may need consent from the child or young person to disclose information about them to the person making a complaint. The statutory guidance on the complaints process says all relevant records should be released to the independent investigator "within the bounds of normal confidentiality and with regard to relevant legislation in the Freedom of Information Act 2000 and the Data Protection Act 1998".
24. Councils may decide not to investigate a complaint if it would prejudice a concurrent investigation, including ongoing court proceedings. But they should consider if it is possible to investigate some or all of the complaint without prejudicing any other investigation. Councils should also be open to considering complaints even when there have been court proceedings
25. If a council has investigated something under the statutory procedure, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

26. Mr D was living with his wife and children. In September 2021 the police made a child protection referral to the Council following an incident at Mr & Mrs D’s home, in which Mrs D had called the police. The police arrested Mr D for assault but did not charge him due to insufficient evidence as Mrs D did not want to pursue the matter and Mr D had given a different account of what had happened. The police’s referral to the Council said the incident had been witnessed by the children.
27. The Council spoke to Mr & Mrs D and convened a strategy meeting which agreed s47 safeguarding enquiries (a “child and family assessment”) should be carried out. Mr D says his GP was also contacted, although this is not recorded in the assessment. The Council completed the assessment on 4 October.
28. The assessment gives a summary of the social worker’s discussions with Mr & Mrs D. They said the incident had not happened and the police report was false. The assessment included information that Mrs D had provided about Mr D’s health and their financial situation. It also said the social worker was concerned that Mrs D was a victim of domestic abuse and there may be learned behaviour by the children. The social worker concluded the children had suffered, and were at risk of, significant emotional harm and an ICPC should be convened.
29. Mr & Mrs D told the Council they would apply for a judicial review about previous complaints they had made which the Council had not upheld. Mr D says the Council did not send him the assessment report and only sent it to Mrs D the night before the ICPC.
30. The ICPC involved the police, a health visitor and a member of staff from Mr D’s son’s school, which he had been withdrawn from in early September. There was a discussion about an incident affecting Mr D’s daughter. The conference found the children were at risk of emotional harm and recommended child protection plans should be put in place.
31. Mr D disagreed with this as he had not been charged by the police and said there had been no domestic violence. Mrs D also disagreed with the outcome and said they would not engage with the plan. Mr & Mrs D again said they would take legal action against the Council and they would not engage with visits or meetings. A few months later Mrs D moved abroad with the children.

Mr D’s complaint

32. Mr D complained to the Council in October 2021 about information the social worker had gathered without his consent and the conclusions reached in the assessment. He also complained the Council had wrongly shared information with the GP and school and that his children now had false records on their files. In particular, he was concerned that information about his daughter had been wrongly shared. This had happened before and the Information Commissioner had upheld a complaint about it.
33. The Council’s stage one response on 28 October 2021 did not uphold Mr D’s complaint. It said the social worker was entitled to make a professional judgment and to gather and share information during a safeguarding enquiry. Mr D asked for the complaint to be escalated to stage two.
34. The Council commissioned an independent investigating officer in January 2022. They agreed a statement of complaint with Mr D on 28 February 2022, which listed eleven parts of complaint.
35. The investigation was delayed until June 2022 as the Council would not share information with the investigating officer. It was concerned that Mr & Mrs D were considering taking legal action. In response to my enquiries, the Council also said there were questions about whether Mr D’s consent was needed before information could be shared with the investigating officer.
36. The investigating officer’s report was issued in July 2022, almost two months after the 65-day deadline set out in the statutory complaints guidance. It upheld one complaint, which was that Mr D had not been provided with the assessment report prior to the ICPC. The Council apologised for this. The report did not uphold the other complaints.
37. Mr D asked to escalate the complaint to the stage three review panel, which met in September 2022. It agreed with the investigating officer and did not uphold Mr D’s complaints. Mr D came to the Ombudsman.

My findings

38. If a council has investigated something under the children's social care complaints procedure, the Ombudsman does not re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the stage 2 investigation.

Complaint handling

39. The delay in the complaint process was fault. I appreciate the Council’s concerns about possible legal action or maintaining data privacy. But I have seen no evidence of any legal action being taken by Mr D and Mr D’s consent was not required for the records to be provided to the investigating officer.
40. This is because the Data Protection Act 2018 says councils can process a person's data if processing is necessary for carrying out its statutory duties. Councils have a statutory duty to investigate complaints made by parents and others. Therefore, in line with the statutory guidance on the complaints process, there are no restrictions on the person investigating seeing the records to respond to a complaint from a qualifying person. The Council should have followed the timescales set out in the guidance and its failure to do so was fault, which caused Mr D a two-month delay.
41. However, the Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Mr D. The investigation took account of evidence from a range of sources and addressed each of the complaints in detail. The report shows the investigator weighed the evidence and drew objective conclusions from it. The report is clear and comprehensive and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions. Having considered all the information available to me, I find that, apart from the delay, the investigation was carried out in line with the guidance.
42. My role therefore is not to re-investigate the whole matter, but to look at whether the Council properly considered the findings and recommendations of the independent investigation. I have also considered whether there was any fault or injustice that was not identified by the independent investigator.

The child protection process

43. Mr D has complained about the information in the child and family assessment, which he says is false.
44. The Ombudsman’s role is to review how councils have made decisions. We cannot make operational decisions on a council’s behalf and we do not offer a right of appeal against a council decision. This means it is not for me to decide whether the incident occurred, whether the information in the assessment was correct, whether the children were at risk of significant harm or whether a child protection plan should have been put in place. I must consider whether there was fault in the way the Council made its decision. If there was no fault in the decision making, I cannot question the outcome no matter how much Mr D disagrees with it. I have therefore reviewed how the safeguarding enquiry and ICPC were carried out.
45. When the Council received the child protection referral, it made initial enquiries and held a strategy meeting with relevant professionals which decided to investigate under Section 47 of the Children Act 1989. The social worker carried out the assessment and decided an ICPC should be convened. The ICPC determined the children were at risk of significant emotional harm the Council decided child protection plans should be put in place.
46. Mr D says the information about him in the assessment is wrong. Social workers must record their discussions and observations in the assessment report. They are also entitled to record their opinions and concerns. There was no fault in the way the Council recorded information in the assessment.
47. The Council has already apologised that it did not send Mr D the assessment prior to the ICPC. I consider that to be an appropriate and proportionate remedy for the injustice caused. I note Mr D had an opportunity to provide his comments and corrections on it at the ICPC.
48. Mr D says the child protection plan should not have recommended he should attend a programme for perpetrators of domestic abuse as he was not charged and there was no evidence that he was a perpetrator.
49. The safeguarding enquiry concluded the children were at risk of significant harm and the Council recommended actions it considered were necessary to remove that risk in the child protection plans.
50. Mr D may disagree, but those were decisions the Council was entitled to make. They were the professional judgment of officers, taken after reviewing the available evidence. Based on the evidence I have seen I am satisfied the Council followed the correct procedures and acted in line with the statutory guidance. There was therefore no fault in the way the Council carried out the safeguarding enquiry or decided to produce child protection plans and I cannot question them or the recommendations in them.

Information sharing

51. Mr D complained the Council failed to gain his consent before requesting or using his information. He also complains that information about his children was wrongly shared. Mrs D has previously complained to the Ombudsman and ICO about this.
52. The role of the Ombudsman is not to consider if data privacy legislation has been breached, but to consider whether there has been ‘maladministration’ or fault. This is a wider concept looking at whether good practice has been followed. As I have set out in paragraph 20, Mr D’s consent would not be needed if the Council requested or shared information for safeguarding purposes.
53. But I consider the ICO is the appropriate body to consider Mr D’s concerns further and I have discontinued my investigation into this element of Mr D’s complaint. This is because the ICO has been given a specific remit to investigate complaints about alleged breaches of the Data Protection Act 1998, and it has powers to take enforcement action if a breach is found.

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Agreed action

54. Within a month of my final decision, the Council has agreed to:
1. apologise to Mr D for the time and trouble caused to him by the delay in the complaint procedure.
2. remind relevant officers of the requirement in the statutory complaints procedures for investigating officers to be provided with evidence and of our guidance on the complaint process.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman