Summary: The Ombudsman cannot investigate this complaint about a criminal conviction and the impact it may have on the complainant’s future career. This is because the Ombudsman cannot investigate any issue that has been the subject of legal proceedings. In addition, he cannot achieve the outcome the complainant would like and there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, disputes a conviction he received while he was in foster care. He wants the Disclosure and Barring Service (DBS) to give him a clear record or for the Council to write a letter to say he should not have been convicted.

Back to top

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’. We provide a free service but must use public money carefully. We may decide not to start an investigation if we believe:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

Back to top

How I considered this complaint

4. I read the complaint and the Council’s responses. I got some background information from the Council and read a letter the Council wrote stating Mr X had fully complied with his referral order. I invited Mr X to comment on a draft of this decision.

Back to top

What I found

Referral order

5. The court can issue a referral order if a child admits the offence and it is the first offence.

What happened

6. Mr X was in foster care. He was reported to the police for allegedly behaving inappropriately towards another child. He was supported by a social worker at the police station and had legal representation.
7. The court issued a referral order which has since been discharged. The Council wrote a letter which confirmed that Mr X had been removed from the register of people who pose a risk to children. The letter confirmed the referral order had been revoked early because Mr X had felt remorse for the victim, had fully engaged in reparation work and a psychologist did not think Mr X was likely to commit another offence.
8. Mr X is concerned the conviction will show up on criminal record checks (DBS checks) and may prevent him from being able to pursue his chosen career. He says he did not get appropriate support when he was interviewed by police and during the court process. He would like to get a clear DBS check when he applies for a job. Alternatively he would like the council to write a letter saying he should not have been convicted.
9. The Council has provided Mr X with an advocate and funded legal advice so Mr X can explore whether he has grounds to challenge the conviction.

Assessment

10. I cannot start an investigation for the following reasons.
11. Mr X was convicted of an offence in court and only the court could overturn the conviction. Neither I nor the Council could say that he should not have been convicted. This is something that Mr X would need to pursue through the courts.
12. The matters Mr X complains of have formed part of legal proceedings. The law says the Ombudsman cannot investigate any matter that has been considered in court and has formed part of legal proceedings.
13. Mr X’s DBS record will be based on decisions by the DBS. The Council cannot change what the DBS records on Mr X’s record or how it responds to questions from potential employers.
14. Unless a court overturns the conviction, the conviction will stand. The Council could not write a letter saying Mr X should not have been convicted because that would be at odds with the decision reached by the court. The Council has, however, responded appropriately by writing a letter of support and providing an advocate and legal advice.

Back to top

Final decision

15. I cannot start an investigation because the matters have been considered in court, I cannot achieve the outcome Mr X wants and because there is insufficient evidence of fault.

Back to top

Investigator's decision on behalf of the Ombudsman