Summary: Mr X complained about the Council’s mismanagement and wrongful outcome of an allegation management process it carried out. He said this had serious mental and physical effects on him and his family and affected his ability to gain employment. We find the Council was at fault. The Council has agreed to several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mr X, complains about the Council’s mismanagement and wrongful outcome of an allegation management process it carried out. He said this had serious mental and physical effects on him and his family and affected his ability to gain employment.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
5. Mr X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

6. In August 2018 the government introduced statutory guidance Working Together to Safeguard Children. The guidance provides a framework for organisations and agencies working with children and families to have clear policies for dealing with allegations against people who work with children. Such policies should make a clear distinction between an allegation, a concern about the quality of care or practice, or a complaint. An allegation may relate to a person who works with children who has:
• behaved in a way that has or may have harmed a child;
• possibly committed a criminal offence against or related to a child;
• behaved towards a child or children in a way that indicated they may most a risk of harm to children.

The Council’s policies and procedures

7. Councils should have a designated officer, or a team of officers to be involved in the management and oversight of allegations against people that work with children.
8. The role of the Local Authority Designated Officer (LADO) is to be involved in the management and oversight of allegations against people who work with children. They are not responsible for undertaking investigations. They can provide advice and guidance to employers and voluntary organisations. The LADO does not:
• undertake any investigation;
• have direct communication with the person subject of the allegation;
• provide advice and support to the person subject of the allegation;
• provide HR advice in respect of suspension or dismissal.
9. The Council has assigned the LADO to:
• receive reports about allegations and to be involved in the management and oversight of individual cases;
• provide advice and guidance to employers and voluntary organisations and agencies;
• liaise with the police and other agencies;
• monitor the progress of cases to ensure that they are dealt with as quickly as possible consistent with a thorough and fair process;
• provide advice and guidance to employers in relation to making referrals to the Disclosure and Barring Service and regulatory bodies such as Ofsted.
10. The Council’s guidance states the employer should seek advice from the LADO, the police and/or Children’s Social Care about how much information should be disclosed to the accused person.
11. Subject to restrictions on the information that can be shared, the employer should, as soon as possible, inform the accused person about the nature of the allegation. The employer should also inform the accused person of how enquiries will be conducted and the possible outcome.
12. The accused member of staff should:
• be treated fairly and honestly and helped to understand the concerns expressed and processes involved;
• be kept informed of the progress and outcome of any investigation and the implications for any disciplinary or related process;
• if suspended, be kept up to date about events in the workplace.
13. Wherever possible, a strategy meeting/discussion should take the form of a meeting. This should take into account the following definitions when determining the outcome of allegation investigations:
• substantiated: there is sufficient evidence to prove the allegation;
• malicious- there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive;
• false: there is sufficient evidence to disprove the allegation;
• unsubstantiated: this is not the same as a false allegation. It means that there is insufficient evidence to either prove or disprove the allegation; the term therefore does not imply guilt or innocence;
• unfounded: to reflect cases where there is no evidence or proper basis which supports the allegation being made.

What did happen?

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. The Council received a referral in June 2021 regarding a serious allegation against Mr X who worked at a school outside of the UK. The LADO reviewed the details and stated it passed the threshold for allegations management.
16. An allegations management meeting (AMM) was held in the same month. It said police would be submitting intelligence against Mr X’s name and stated:
• the LADO would seek advice from an international organisation, E;
• prior to speaking with the school principal, the LADO would liaise with police;
• Mr X would be informed that he had been subject of an AMM.
17. Mr X was informed by his employer that a former student had made a serious sexual allegation against him. No further details were shared with Mr X.
18. In July 2021, it was noted in an email that the LADO had initially stated they would not predict an outcome and the decision would be based on evidence presented. This email was later followed by D, stating the LADO had suggested this case might be an unsubstantiated outcome.
19. The LADO contacted a membership organisation, D, and provided minutes of the AMM meeting. The LADO stated they were aware Mr X had the right to reply to the allegations and provided D with a copy of the international protocol for managing allegations.
20. The LADO also told D the internal investigation would continue and the principle with D supporting should lead on this matter. The LADO also said the investigation should look at the allegations, establish any supporting evidence and take into account replies of Mr X when the allegations are put to him.
21. D told the LADO it had informed Mr X of the serious safeguarding disclosure and allegation. It was also noted that D would discuss this with colleagues and as appropriate, offer support to Mr X with any next steps.
22. In July 2021, an AMM was held. It was noted that the school had not done an internal investigation but had made enquiries. E noted that Mr X needed to be spoken too and given the right to reply. It was agreed that D would offer ongoing support to Mr X and police were to update the LADO on its decision.
23. In the same month, the LADO contacted the National Crime Agency (NCA) who had concerns about informing Mr X of the allegations. The LADO said this would not take place until the police had made a decision. The NCA asked the LADO for any information it had on Mr X.
24. At the AMM held in July 2021, it was noted that police would not be making contact with Mr X. The LADO noted they had escalated this to management due to the fact there needed to be an opportunity for Mr X to be spoken too. It was noted that the LADO was limited on what they could do. Another organisation, C, noted they had made some internal enquiries and found a number of areas of concerns in the practice of Mr X in his role at the school. Mr X disputed this and stated this was false and malicious.
25. In the same month, the LADO asked the NCA if they would consider reviewing the allegations and speaking to Mr X about this. The LADO advised the NCA Mr X had the right to know he had been the subject of an allegation management process and the conclusion of the outcome.
26. The police attended a meeting in August 2021 with the NCA and LADO. It was agreed that:
• NCA/police would check all previous school where Mr X had worked;
• Police/NCA to work with Mr X’s previous employer;
• upon the LADO receiving the updates from the agreed actions, the LADO would decide a date to hold a review of the AMM;
• potential for Mr X to be spoken to and as a result conclude this referral with an appropriate outcome.
27. The LADO emailed a new school Mr X was working at in August 2021. They said they were unable to share details of the matter as it was subject to a police review. But said when appropriate, it could update them with safeguarding information.
28. At the AMM held in September 2021, the NCA stated it was only once the law enforcement work was concluded that the matter would be passed to the Council to contact Mr X. Actions from the meeting that were completed by October were:
• Police to update the LADO;
• Mr X to be offered ongoing support by D;
• NCA to update the LADO.
29. In November 2021, the NCA and police advised the LADO there would be no ongoing investigation. The LADO stated they would record the outcome as unsubstantiated based on Mr X being made aware of the brief details and denying anything inappropriate happening. The LADO informed the school of its decision in December 2021 and asked them to inform Mr X.
30. In March 2022, after D had asked the LADO if they were still going to contact Mr X, the LADO asked Mr X to forward them any questions they had. Mr X asked what the LADO’s role was, which was explained.
31. Mr X’s legal representative contacted the Council in the same month and said it took 10 months for Mr X to be advised it was the Council investigating. They also requested a subject access request, and the LADO advised them to submit this request via the Council’s website and the information was provided in June 2022.
32. In October 2022, the legal representative asked the Council to review and amend the outcome of unsubstantiated to unfounded. The Council agreed to conduct a review.
33. The Council responded in December 2022. It said:
• the name of the young person and further details had not been shared as this could breach confidentiality;
• the outcome of unsubstantiated was in effect an outcome of neutrality where the allegation is one person’s word against another;
• it is satisfied this is an appropriate outcome.
34. Mr X’s legal representative said the outcome was inappropriate as the LADO had assumed the outcome must be unsubstantiated which excluded the possibility of unfounded. They asked for it to be reviewed again or escalated.
35. The Council responded in February 2023. It said there was no formal review process for the allegations management process but the children’s service has conducted a review. The review stated:
• an outcome of unfounded would be based upon balance of probability to indicate that the alleged incidents did not occur;
• and there was insufficient evidence in this case to support this outcome;
• there is similarly insufficient evidence to prove the allegation, so an outcome of substantiated is equally not applicable.

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Analysis

36. Mr X said he was never given the opportunity to respond to the allegations. The LADO procedure states the employer must tell the accused person about the allegation. The LADO is an advisory role. The employer should seek advice from the LADO, the police and/or Childrens Social Care about how much information should be disclosed to the accused person. The employer should also, as soon as possible, inform the accused person about the nature of the allegation, how enquiries will be conducted and the possible outcome. It is also the employers role to keep the accused member of staff informed of the progress of any investigation.
37. In this case Mr X was spoken to by the head of school in June 2021 and made aware of a brief anonymised allegation. Whilst I understand that the Councils LADO role states the LADO does not have direct communication with the accused, the guidance also states the LADO is to be involved in the management and oversight of allegations. Throughout the case the meetings note that all parties involved, including the LADO, were in agreement that Mr X should be spoken to and given the opportunity to respond. Whilst I understand that Mr X may not have been spoken to whilst the police and the NCA were looking into the allegations, there is no evidence to suggest anyone made attempts to speak with Mr X before recording the outcome. As the LADO is to be involved in the management of allegations, I consider the Council to be at fault for failing to ensure Mr X was spoken to as suggested throughout the case. This caused Mr X significant stress.
38. Mr X said the LADO predetermined the outcome. As stated in paragraph 18, D stated the LADO had suggested the outcome might be unsubstantiated. This was after the LADO had received the referral and attended an AMM meeting. Whilst I understand Mr X’s concerns, I do not consider this to be fault as several AMMs took place after this where the case was discussed in detail with other agencies.

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Agreed action

39. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:
• apologise to Mr X for the faults identified in this statement;
• pay Mr X £200 to acknowledge the distress caused to him by the fault identified in this statement;
• arrange for Mr X to be spoken too and given the opportunity to respond to the allegations. Once his comments have been obtained, reconsider the Council’s previous decision to record an unsubstantiated outcome and write to Mr X with its decision. When reconsidering the previous decision, the Council will maintain the confidentiality of the young person.

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Final decision

40. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman