Summary: We will not investigate Mr X’s complaint about what the Council recorded about Mr X during a child protection investigation. Doing so would be unlikely to lead to any worthwhile outcome as the Council decided not to take child protection action and closed Mr X’s family’s case without doing so. Another body is better placed than us to dela with any factual inaccuracy in the Council’s records, and defamation is a matter only a court could decide.

The complaint

1. Mr X said what the Council recorded about him was untrue and defamatory. He said the Council’s failure to correctly recognise his child’s condition led to unnecessary additional stress for him and his family. He said he lost trust in the Council, and is constantly fearful that his child could be removed without good reason.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council received a referral regarding concerns about Mr X’s child. The threshold for child protection enquiries is set deliberately low by law. This is because the intention is to protect children from risk of significant harm, and a higher threshold would deter referrals. Many referrals therefore do not lead to child protection action, though parents inevitably find them stressful. Mr X says the Council should have recognised that matters related to a condition the child has. However, if we investigated this matter, it is unlikely we would find the matter was so clear cut the Council should immediately have closed the case. Nor would be able to find the Council should not have recorded what was referred to it by an external organisation. The Council told us it eventually decided there were no grounds to take child protection action and that it closed the case after Mr X’s family declined an invitation to have their child regarded as a Child in Need. It would be standard practice where there were health or developmental concerns about any child that did not amount to child protection to ask the child’s parents to follow any advice provided by social workers.
8. Social workers are entitled to record their opinions based on what they know as a case develops. Where a person says what has been recorded is factually incorrect and a Council declines to add a correction to the records, they have a right to approach the Information Commissioner’s Office (ICO). It is better placed than us to deal with matters of alleged data inaccuracy as it has powers to require rectification and to impose penalties. We lack those powers.
9. Defamation is a matter only a court can decide. If Mr X remains of the view that what the Council has recorded is defamatory, he has a right to go to court it would be reasonable to use.
10. I note the Council took the view that it could not accept a complaint about this matter. That is not correct. However, where we are not investigating the substantive matter of a complaint, it is not a good use of public funds to investigate the way a council dealt with a complaint about it.

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Final decision

11. We will not investigate Mr X’s complaint because:

• Doing so would be unlikely to lead to a worthwhile outcome;
• The ICO is better placed than us to consider matters of data accuracy; and
• Mr X has a right to go to court it would be reasonable to use if he wishes to pursue alleged defamation of character.

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Investigator's decision on behalf of the Ombudsman