Summary: We found fault on Mr Y’s complaint about the way the Council dealt with allegations against him which it referred to the Local Authority Designated Officer. Minutes were not accurate and failed to show consideration of a recommendation. This caused him lost opportunity and uncertainty about whether the recommendation needed further action. The Council agreed to send him a written apology, remind relevant officers to ensure recommendations from previous meetings are considered and decided, as well as reminding minute takers of the need to accurately record those in attendance.

The complaint

1. Mr Y complained about the Council, following a referral to the Local Authority Designated Officer (LADO) to oversee allegations against him, failing to:
1. ensure consistent case management by a single LADO or the same senior manager;
2. ensure the voting which considered the outcome of the LADO investigation was objective and fair as half of the members were from Human Resources;
3. base the decision to substantiate the allegation on the proper consideration of all the evidence;
4. follow the recommendation made by the police; and
5. ensure the minutes of the final Allegations Management Meeting were accurate.
2. As a result, he was affected professionally and caused a great deal of stress, anxiety, and frustration.

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The Ombudsman’s role and powers

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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have not investigated any part of Mr Y’s complaint which might touch on the Council’s disciplinary proceedings. This was because we cannot investigate a complaint if it was about a personnel issue.

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How I considered this complaint

9. I considered all the information provided by Mr Y, including the notes of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

Council policy: Allegations against staff or volunteers

10. There is a difference between an incident amounting to an ‘allegation’ or a ‘concern’. The procedures apply to allegations which include behaving towards a child in a way that indicates they may pose a risk of harm to children. They can be made about physical handling and restraint. Whether an incident amounts to an allegation may have to be discussed with the Local Authority Designated Officer (LADO). There may still be a role for the LADO if it falls short of the threshold.
11. The LADO needs notifying within one working day when an allegation is made before any further investigation happens.
12. The accused member of staff should be kept informed of progress and outcome of any investigation.

Council policy: Managing allegations against people who work with children

13. An allegation of harm has to be sufficiently serious to suggest harm has, or may have been caused to a child, or the behaviour alleged indicates an individual may pose a risk of harm to children.
14. The LADO role includes receiving referrals about allegations, being involved in the management and oversight of such cases, and chairing Allegation Management Meetings (AMM). They liaise with police and other agencies and monitor the progress of cases to ensure they are dealt with as quickly as possible, consistent with a thorough and fair process.
15. The LADO does not investigate allegations as this is the responsibility of the employer/police. The LADO has no decision-making role, does not communicate with the accused or alleged victims but, ensures those investigating maintain communication and are provided with relevant updates.
16. The accused has the right to reply to allegations against them. It is not for the LADO to consider the accused’s evidence directly as this is the responsibility of the organisations investigating.
17. The Managing Allegation Process is a strictly confidential information sharing process, considering all relevant information to understand the allegation. The allegation outcome is based on evidence and facts gathered from investigations. It is reached on the balance of probability.

What happened

18. Mr Y worked with ‘looked after children.’ These are children who are in the care of a council for more than 24 hours. He claimed, after his wife made whistleblowing claims against senior managers, disciplinary proceedings were started against him. He believed this was motivated to strengthen the case the Council wanted to take against his manager.
19. In 2021, Mr Y claimed the Council suspended him for an incident that happened years before. A fact finding report was completed in June which resulted in an action plan. I have not seen a copy of the report or the action plan.
20. In March 2022, LADO consultation took place following a staff team meeting at which allegations were made against various staff, including Mr Y. Shortly afterwards, the Council suspended him pending an investigation.
21. Over the coming year, there were various Complex Strategy meetings held until in January 2023, it had the first LADO chaired AMM.
22. In April, the second AMM was held which was told the disciplinary hearing had dismissed Mr Y. The police agreed its recommendation about an independent review had been met.
23. My Y appealed this dismissal decision and in June, the appeal confirmed his dismissal.
24. The same month, the final AMM was held. It named those present but, recorded a member substantiating the allegation who was not recorded as present. It also failed to properly record a member present reaching a decision. The Council accepted this was an error and was checked with the LADO. The wrong name was used when recording who substantiated the allegation.
25. In August, the Council sent Mr Y the outcome of the allegation management process.
26. I now consider Mr Y’s separate complaints:

Complaint a): ensure consistent case management by a single LADO or the same senior manager

27. Mr Y complained about inconsistent case management as there were 3-4 different LADOs dealing with the allegations and a large number of senior managers involved.
28. The Council explained when the referral was made in March 2022, the LADO was from an agency. A permanent LADO was appointed in July and so the Council no longer needed the agency one. The permanent LADO oversaw the managing allegation process until the final conclusion.

My findings

29. I found no fault on this complaint. This was because for all three AMM’s, the LADO was the same person.
30. I note there was lack of continuity of Council officers attending all three AMMs, but I am not satisfied this amounted to fault. This was because it was not unusual for officers to be unavailable for some meetings over the period involved.

Complaint b): ensure the voting panel which considered the outcome of the LADO investigation was objective and fair as half of the members were from Human Resources

31. Mr Y complained the decision of the final AMM was subjective and unfair because Human Resources (HR) officers gave opinions and false information. They also amounted to half of the final AMM which he believed resulted in bias.
32. The Council pointed out of the four present, only one was from HR.

My findings

33. I found no fault on this complaint. There was only one member of the final AMM who was from HR out of the four present.
34. Information about the allegations and the progress of the disciplinary proceedings were given to the LADO throughout all three AMMs. Whether HR had been objective or not, or given inaccurate information, was for Mr Y to have challenged during his disciplinary proceedings.

Complaint c): base the decision to substantiate the allegation on the proper consideration of all the evidence

35. Mr Y complained about the way the AMM considered the evidence when it decided to substantiate the allegations against him. The report concluded on the ‘balance of probabilities’ the incidents had happened which he argued was not the required standard.
36. He believed the independent investigator’s report to the AMM was not based on evidence but on hearsay. Hearsay evidence is a statement made which is, simply put, ‘second-hand’ evidence. It is evidence which: the maker of the statement did not witness directly themselves; does not come direct from the source; may be a second-hand account of what someone else had told them, for example.
37. Mr Y also noted the evidence he presented during the disciplinary process was not presented to the AMM/LADO. He was unhappy the AMM looked at wider issues within the Council rather than just solely focusing on him.
38. The Council explained the minutes of the AMM showed the outcome of his disciplinary hearing and appeal were recorded. The Council noted Mr Y had the option to present information during the disciplinary investigation and hearing. The LADOs role was not investigative. It also explained it was made clear at the start what was an allegation, what was testimony or a statement, and what was evidence during the process

My findings

39. I found the following on this complaint:
1. I am not satisfied it was fault for the LADO/AMM to consider the wider failings of the Council. This was because it was appropriate for the LADO to look at the wider ramifications of the allegations and failings found. I am satisfied this did not distract from the focus on Mr Y’s allegations which was evident from the AMM minutes.
2. I considered the investigator’s report which was before the AMM as evidence. While Mr Y claimed the AMM upheld the allegations based on hearsay evidence, I am not satisfied this was correct. This was because the report itself referred to accounts given by members of staff who witnessed incidents. This was not hearsay evidence but first had accounts from witnesses of what they saw.
3. The report noted there were no written accounts of what the witnesses saw and said at the time of the incidents. While correct, the accounts given by witnesses who said they directly saw incidents, was still evidence. What weight to give the evidence was for the AMM to decide.
4. It accepted there was a lack of record keeping at the time of the incidents alleged, and the amount of time that passed since they happened, which created difficulties with the investigation. This was also evidence before the AMM when it reached its decision.
5. The report recorded why children were not interviewed. It confirmed the officer read reports from young people and their accounts matched those given by staff on several instances. This was also evidence before the AMM when it reached its decision.
6. Mr Y had the opportunity to respond to the allegations and case made against him during the disciplinary proceedings. The LADO process was not a rehearing of it. It was not the LADO’s role to consider Mr Y’s evidence directly.

Complaint d): follow the recommendation made by the police

40. Mr Y complained at the first AMM, the police recommended an independent review by an independent local education authority social care team who were considered as ‘Good’ or ‘Outstanding’.
41. Mr Y was unhappy this was not done. The independent investigator appointed was not from an independent local education authority social care team but was chosen from the Council’s partner council (council 2).
42. The minutes of the first AMM stated the investigating officer was independently commissioned and set out her professional background. This officer had social worker experience, which met the requirements of the police. This information was set out in the report. The minutes stated the independent investigator with experience satisfied the police request.
43. The Council said council 2, and the independent investigator who was not employed by it, resulted in the police agreeing there was enough independent oversight of the investigation. The police agreed the recommendation had, therefore, been met. The Council explained council 2 was working with it to make service improvements. The AMM raised no issue with it.
44. He was also concerned a recommendation in the first AMM for a review of Team Teach techniques should be done by an external training body or regulatory body. This was never done. He claimed the investigator was not trained or qualified in Team Teach. The Council confirmed the LADO was trained in it. Team Teach was a toolkit for behaviour management which was mainly focused on understanding children’s behaviour and de-escalating challenging situations, for example.
45. The Council explained this recommendation was not used as the independent investigator had the relevant skills and experience to make that judgement. The Council had told Mr Y at stage 2 of the complaint process that this recommendation was not followed up at the second AMM. Having spoken to the LADO and HR, it confirmed the failure to follow this up was down to human error. There was a failure to record the outcome of the action. The decision about whether to involve a Team Teach specialist rested with the employer, or independent investigator on its behalf, as part of the disciplinary proceedings. The investigator decided not to do so given her own experience.

My findings

46. I am not satisfied there was fault on Mr Y’s complaint about the failure to carry out the recommendation by the police about the appointment of an independent review by another local authority. This was because the evidence showed the police were told at the first AMM about the appointment of the independent investigation officer, her qualifications, and the involvement of council 2. Had the police had any doubts about either, they had the chance to raise objections at the first AMM. They did not do so, and considered their request met.
47. I found the following on Mr Y’s complaint about the failure to address the Team Teach recommendation:
1. I am satisfied there was a failure to show the AMM actively considered whether the recommendation about the Team Teach review needed actioning further or not. There was nothing about this mentioned in the second AMM. This was fault.
2. I am satisfied this caused Mr Y injustice in the form of distress. He lost the opportunity for the AMM to consider and decide whether this recommendation needed actioning further. I consider it is speculative to say whether the outcome would have been any different.

Complaint e): ensure the minutes of the final Allegations Management Meeting were accurate

48. Mr Y complained the final AMM minutes stated someone substantiated the decision who was not recorded as present. Another member recorded as present, was not recorded as saying whether he substantiated the decision or not.
49. The Council accepted this was an error as the person was present. The minutes had just recorded the wrong person present.

My findings

50. I found fault on this complaint. Due to an administrative error, the wrong name was recorded as deciding to substantiate the allegations
51. I am satisfied this caused Mr Y some injustice. This was in the form of distress as he had the uncertainty about whether the decision was properly made.

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Agreed action

52. I considered our guidance on remedies.
53. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for failing to: show it considered whether the recommendation in the first AMM was actively considered and record the reason why it was decided not to be necessary; ensure accurate minutes of attendees of AMMs were made.
2. Remind LADO’s and relevant officers of the need to ensure recommended action from previous AMM’s are shown to have been actively considered and decided.
3. Remind minute takers of AMMs of the need to accurately record who is in attendance.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I found the following on Mr Y’s complaint against the Council:
1. Complaint a): no fault;
2. Complaint b): no fault;
3. Complaint c): no fault;
4. Complaint d): fault causing injustice; and
5. Complaint e): fault causing injustice.
56. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman