Summary: We have upheld Miss X’s complaint about the Council’s handling of her complaint about its children’s services. The Council has accepted fault in the way it retained Miss X’s records and now agreed to remedy for avoidable uncertainty this creates. This provides a proportionate remedy for the injustice caused.

The complaint

1. Miss X complained to the Council that it failed to safeguard her when she was a looked after child between 1997 and 2003. She says the Council’s failures impacted her emotional and cognitive development and caused her ongoing mental health issues. She wants the Council to explain its actions, to review its policies, apologise and pay her compensation for the lasting impact.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

3. I considered information provided by Miss X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Miss X was known to the Council’s children’s services between 1997 and 2003 as a looked after child, and later, an adopted child. Miss X complains that the Council failed to safeguard her during this period and left her in unsafe care. The Council declined to consider Miss X’s complaint through its statutory complaints procedure because it decided it was not possible to conduct a fair investigation because:

• staff involved in her case no longer worked for the Council; and
• key records are missing, incomplete, illegible or unavailable.

6. Instead, it commissioned an independent investigator to review the available records and prepare a report about what happened during that period.
7. Generally, a person should complain to the council within one year of the events complained about. However, councils have discretion to accept a complaint made late where it was not reasonable for the person to have complained in time and where it is still possible to carry out an investigation.
8. Councils also have a duty to retain children’s social care records, and are expected to retain:

• looked after children records for at least 75 years from the child’s date of birth;
• child protection records for up to 30 years (subject to local policy); and
• adoption records for 100 years from the date of the adoption order.

9. We accept the reasons the Council declined to consider Miss X’s complaint through the statutory complaints procedure and that the absence of clear and reliable records prevents it from carrying out a fair investigation. However, as Miss X was a looked after child and later adopted, the Council had a duty to retain her records for at least 75 years, and if not, 100 years given her subsequent adoption. Therefore, if we were to investigate this complaint it is likely we would find the Council at fault for not ensuring appropriate retention and storage of Miss X’s records.
10. Because of the absence of records, the Council is unable to properly investigate Miss X’s complaint through its statutory complaints procedure. As a result, Miss X is left with avoidable uncertainty about what went wrong and what could have been done differently. We consider this a significant injustice. Miss X is unlikely ever to receive full answers to her concerns. In addition, the loss of records has removed any meaningful opportunity to identify failings or harm caused or consider whether further remedies would have been appropriate.
11. We therefore asked the Council to consider resolving this complaint early.

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Agreed action

12. To its credit the Council has agreed to remedy resolve this complaint by completing the following action within one month of this decision statement:
• making a written apology to Miss X; and
• making a symbolic payment of £500 to Miss X in recognition of the avoidable uncertainty and loss of opportunity to obtain answers.
13. The Council should provide us with evidence to show it has completed the above action.

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Final decision

14. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice cause to Miss X.

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Investigator's decision on behalf of the Ombudsman