Summary: Mr D complains about abuse and racism whilst he was in the Council’s care as a child in the 1970s and 1980s. We have ended our investigation because the complaint is late and there is no realistic prospect of reaching a sound, fair and meaningful decision.

The complaint

1. Mr D complains that when he was a child in care from 1974 to 1985, the Council:
• Failed to safeguard him from sexual and physical abuse by his adoptive father.
• Placed him in care homes where he was force fed and physically, sexually, racially and emotionally abused and subjected to discredited pin down therapy.
• Did not take account of his race when placing him.
• Placed him in an adolescent unit when he was a young child.
• Did not support him after he left care.
• Did not support him when it gave him his care records.
2. Mr D says this has ruined his life. He has been caused significant trauma and mental health issues. He has spent time in prison and has been diagnosed with post-traumatic stress disorder. Mr D wants the Council to be held accountable for the abuse he suffered.

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The Ombudsman’s role and powers

3. 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’.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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
• 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))

6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

7. I considered the information Mr D sent, including his summary of evidence from his case records and the Council’s response to his complaint.
8. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

9. Mr D was taken into the care of the Council when he was born and was then adopted. Mr D has case records that show his adoptive family had threatened him with violence and that social workers did not consider why his behaviour had deteriorated when the adoption broke down. He says the Council failed to recognize that he was experiencing abuse by his adoptive parents.
10. After the adoption broke down, Mr D was placed in four children’s homes in Leicestershire from 1976 to 1985. Mr D says one was an adolescent unit which operated pin down therapy and was unsuitable as he was only a young child and the only black person there. The case records show a social worker expressed concern at the time that Mr D was too young for this unit.
11. Mr D says he was physically, sexually, racially and emotionally abused in every setting. Mr D says racism caused the Council to not treat him as a victim of abuse. Instead, he was dealt with as having out of control behaviour. The case records include references to Mr D being “acutely aware” of his race and a psychiatric report which attributes Mr D’s behaviour to his ethnicity. Mr D says the Council failed to recognize the impact severe and sustained racism had upon him.
12. During the 1990s there was a prosecution and conviction of a former council employee. Following this a statutory inquiry was launched about the response to abuse in Leicestershire's children's homes between 1973 and 1986. A number of claims have been made against the Council and compensation of about £1,000 was paid to Mr D through his lawyers in the 1990s.
13. After obtaining his care records in 2016 from a different local authority, Mr D had help from a friend to go through his records to understand what had happened and the decisions the Council had made. He went to the police and also gave evidence to the Independent Investigation into Child Sexual Abuse.
14. Mr D complained to the Council in January 2021. The Council did not uphold his complaint and noted that there were some gaps in the records, no evidence that practice fell short of that expected, or linking any abuse to failures in practice. It declined to escalate his complaint to the second stage of the statutory children’s complaints procedure because:
• It would have been reasonable for Mr D to have complained substantially earlier.
• It would be very difficult for an independent investigator to carry out an effective investigation because there were no officers available to be interviewed and, whilst there were historic records there was no opportunity to clarify these with individuals involved.
• There was no realistic prospect of further investigation achieving anything further.
15. The Council advised Mr D to seek legal advice with a view to making a claim against the Council.

My findings

16. Section 26B of the Local Government Act 1974 inserts a 12-month time limit for a member of the public to bring their complaint to the Ombudsman. The period runs from the day the person affected had notice of the matters alleged in the complaint. We have discretion to investigate complaints received later than this if we decide there are good reasons.
17. Where we receive complaints containing historical allegations, we will only exercise our discretion to investigate if we are satisfied a case meets the following two tests:
• We are satisfied a complainant could not reasonably be expected to have complained sooner.
• We are confident there is a realistic prospect of reaching a sound, fair and meaningful decision.
18. We employ these tests because:
• The older the case is, the less likely it is we will be able to gather sufficient evidence to reach a sound judgement. Even if some evidence is available, we need to ensure it is reliable and provides a full picture.
• It is more likely that staff involved will have left the Council’s employment and even if staff are available to interview, any recollections are likely to be unclear and/or unreliable due to the passage of time.
• In older cases we cannot apply current standards or expectations, so we are more unlikely to be able to reach a fair conclusion as to whether there was fault.
• It is more difficult to achieve a meaningful remedy.
19. We will always consider each complaint on its merits and take account of the individual circumstances. However, the seriousness of the allegations made does not remove the need to consider the two tests mentioned above.
20. Mr D complained to the Council in 2021 about events in the 1970s. I consider it would not have been reasonable for him to have complained sooner. This is because he was a child at the time of the events, then in and out of prison and suffering mental health issues. He only felt able to start complaining in 1997. He has been pursuing the matter ever since. He went to a solicitor and the police, obtained his care records, and gave evidence to the Independent Investigation into Child Sexual Abuse. I consider it reasonable that he did not formally complain to the Council until 2021.
21. However, for us to investigate there also needs to be a prospect of reaching a sound view, on the balance of probabilities, about whether the Council’s actions were fault, rather than a question of professional judgement. To do so we need evidence. Although Mr D has records, they do not show clearly that there was fault by the Council. Nor can I interview any of the staff employed by the Council more than 35 years ago. I am therefore not confident that I would be able to get enough evidence to say professional judgments were administratively flawed and decisions not properly taken.
22. I do not seek to dismiss Mr D’s complaints. But too much time has passed for the Ombudsman to be able to carry out an investigation that would lead to a sound, meaningful and fair decision. Having applied the Ombudsman’s guidance, I find there are insufficient grounds to treat the case as an exception.
23. I note also that the Government has agreed to implement the recommendation of the Independent Investigation into Child Sexual Abuse to set up a redress scheme for victims of abuse. This may give Mr D an alternative remedy for the injustice caused.
24. The Ombudsman cannot recommend actions or payments that ‘punish’ the Council. Nor can we say whether the Council has been negligent and recommend compensation for any associated damages, as that is for the courts. Mr D could bring proceedings against the Council in the courts for its alleged failure to protect him.

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Final decision

25. I have discontinued my investigation because the complaint is late and there is no realistic prospect of reaching a sound, fair and meaningful decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman