The Ombudsman's final decision:
Summary: The Ombudsman finds fault by the council in sharing information about the complainants’ immigration status with other agencies, including the children’s schools. It caused them worry and uncertainty. The Council has agreed to apologise and to pay the complainants £250. The Council will review its procedure for recording the sharing of information. The Council also took too long to deal with the complaint. It has offered a satisfactory remedy for the delay.
- Mrs L complained that the Council failed to support her family properly during a period when they had no recourse to public funds. The Council’s attitude was disrespectful and intimidating. It misinformed other agencies, including the children’s schools about the family’s immigration status. It passed on this information without consent. The Council did not deal properly with their complaint and took much too long.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
How I considered this complaint
- I discussed the complaint on the telephone with Mrs L. I considered all the information she provided. I wrote to the Council and considered the documents it sent me. I considered the relevant law and guidance.
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- Immigration law is contained in several acts including the Immigration and Asylum Act 1999. The government has provided guidance to local authorities. Some people are unable to receive welfare benefits because they are unlawfully present or have no right to remain in the UK. The government has provided guidance to local authorities. The guidance is ‘Assessing and supporting children and families who have no recourse to public funds’. It explains the council’s duty to provide subsistence and housing for families who otherwise would be destitute. Councils support children in these circumstances under section 17 of the Children Act 1989. It provides a general duty to promote the upbringing of children by their families. The Council can provide financial and housing support to safeguard and promote the child’s welfare.
- The Council carries out a ‘child in need’ assessment. It can ask the family to provide documents and can check their immigration status with the Home Office. The Council must make enquiries into the family’s financial circumstances. It must consider whether the child is not in need because the family has alternative means of support.
- The Children’s Services statutory complaints’ procedure provides a three stage process for dealing with complaints. An Investigating Officer (IO) investigates the complaint and writes a report at stage two. A panel considers it at stage three. The Council’s adjudicator decides whether to accept the panel’s findings. Time limits apply at each stage and the procedure should take no longer than six months in total.
Events leading to the complaint
- Mr and Mrs L have three daughters: K aged 11, M aged 10 and P aged six. They all were born in the UK. Mr and Mrs L originally entered the country illegally on false passports. They had professional jobs. After Mr L stopped working they got into financial difficulties. Their house was repossessed owing to mortgage arrears. Mr and Mrs L were trying to resolve their immigration status. They asked the Council for help because they were homeless and without funds.
- The Council started a child and family assessment under Section 17 on 16 June 2014. The family was placed in temporary bed and breakfast accommodation on the same day. The Council questioned whether there were resources available to the family. They had been owner occupiers of a property with an equity value of around £29,000. K attended a private school. There was a question about other possible savings. The family had applied for leave to remain on humanitarian grounds. While it looked into these matters the Council agreed to support the children as ‘children in need’.
- The social worker who carried out the assessment had a dual role. She had to oversee the children’s welfare. She also had to look into the family’s financial circumstances to find out if they had any assets. Mr and Mrs L gave consent for the social worker to carry out welfare checks with other agencies. The Council has a record of the consent signed on 22 July 2014. The social worker asked Mr and Mrs L to provide bank statements for six months and other financial information. She asked for details of savings of £20,000 and a loan of £15,000. She asked about the whereabouts of other family members, including Mrs L’s sister who lived in the UK.
- The Council checked the family’s immigration status with the Home Office. It told the Council that Mr and Mrs L had applied to remain on compassionate grounds. The application was refused and they had not challenged the decision successfully. Their case was with a case worker for removal from the country. But further information was required. The social worker understood Mr and Mrs L were at the end of the appeal process and waiting for a decision on their removal from the UK. They had submitted a further application on human rights grounds. The social worker questioned whether Mr and Mrs L were being truthful about their circumstances. She referred the case to her manager and the Council’s legal adviser. The Council’s solicitor wrote to Mr and Mrs L’s legal representative to say the assessment had found ‘they were dishonest and withholding information’. The social worker and her manager proposed support for the family should cease. But the legal adviser advised against ending support for the family at that stage. The Council decided on 8 August to continue to support on a temporary basis until the Home Office reached a decision on their current application.
- In August 2014 the family moved to more suitable temporary accommodation in another county. It was in line with government policy for people in their situation with no recourse to public funds. The Council continued to meet the cost of the accommodation and paid the family £94.46 weekly for subsistence. In October Mr and Mrs L received a removal decision from the Home Office and appealed on 20 October. They have explained that they were not at the end of the appeal process.
- In September 2014 K started as a boarder at a private school on a scholarship. The two younger children started at a primary school in the area where they now were living. The social worker wrote to Mr L to ask for details of the children’s schools and K’s scholarship. She asked for his consent to share information with the schools. Mr L objected. The social worker telephoned him on 18 September to explain the need to obtain information from the private school as part of the financial assessment. Mr L agreed to the contact but did not want the private school to know about the family’s immigration status. He was concerned about what information would be shared and wanted to be clear about the process. There were a number of telephone conversations between the social worker and Mr L.
- The social worker then had a telephone conversation with the private school on 22 September. She asked for financial information about the contract with the school, school fees and the parents’ contribution. But Mr L had not given the school permission to divulge any information. The Council wrote to Mr L, and then to both parents, to explain their enquiries were necessary for the Council to make a decision on Section 17 support. On 11 November the school was able to provide the information the Council had asked for. The accounts provided by the parents showed they had no income. The school had not asked them to contribute to the fees. It was exploring other ways of supporting K. The social worker’s note on the Council’s file says:
‘School unaware of immigration status of the family. I shared on a need to know basis only. The current position based on how the children came to our attention and subject to CIN plan. School unaware of wider background to [K’s] circumstances’.
- The files show there were exchanges of information also between the social worker, the primary school and the NHS. These were mainly about a concern that Mr L’s mental health might have an impact on the children; and the monitoring of the children’s welfare. On 24 November 2014 responsibility for the children’s social care transferred to the authority where they now were living. That Council allocated a social worker to oversee the child in need plan. Thurrock Council remained responsible for supporting the family financially.
- A professionals’ meeting for the handover took place on 28 November 2014 at the primary school. No formal minutes are available. The meeting included representatives from agencies who knew the family, including both the children’s schools. Mr and Mrs L were invited to attend part of the meeting. They made no comments. They later said they were concerned that the Council’s social worker may have given misleading information to the meeting that they were unable to challenge. Mrs L says the private school decided to exclude K at the end of that term. She believes it was on the basis of being told wrongly that the family was due to be deported.
- K did not return to the private school in January 2015. The school withdrew her place. After an incident at the primary school Mrs L withdrew M and P. From January 2015 she provided home schooling for all three children.
- On 7 April 2015 the family was granted leave to remain. It meant Mr and Mrs L had the right to work and to claim benefits. Mr and Mrs L confirmed this in a telephone conversation with the Council on 1 May. The Council wrote to give them notice that their financial support would cease and they should make arrangements to leave the accommodation. The Council explained its policy of giving two week’s notice following the grant of leave to remain. The Council extended the funding to 28 August 2015.
- Mr and Mrs L made their first complaint in May 2014. It went on to be considered at all stages of the statutory children’s services complaints’ procedure over a period of over two years. New matters were added along the way. Not all these are relevant to the complaint to the Ombudsman. I have considered what happened in four areas of the complaint which are relevant.
- The complaints’ procedure has been complex and lengthy. Following its response at stage one in June 2014 the Council appointed an Investigating officer (IO) and an Independent Person to investigate at stage two. The IO wrote a report, finalized on 30 April 2016. She upheld many aspects of the complaint. But the Council’s Adjudicator, the Head of Children’s Social Care, disagreed with most of the IO’s findings. The complaint then went to a panel at stage three on 3 November. The panel reached its own conclusions. The Council’s Adjudicator did not concur with all of them. His final letter to Mr and Mrs L is dated 24 November 2016.
- Complaint 1 considered by the IO was ‘Intimidating and disrespectful attitude and treatment based on the unfounded belief that we purposefully misinformed and withheld information from the local authority’. The IO said there were clearly gaps in the information the Council had in July 2014. The social worker was right to look into the family’s circumstances further. The IO would not criticise her for not believing Mr and Mrs L; it was her assessment. But the IO questioned whether the decision they were dishonest, and so to end support, was premature. The IO partly upheld the complaint. The Council’s Adjudicator disagreed. He found the Council had reasonably asked for information about the family’s circumstances which they had not provided. At stage three the panel found insufficient evidence to uphold the complaint.
- Complaint 5 considered by the IO was ‘misinforming other agencies about our immigration status in the UK resulting in disastrous consequences for the family and the children in particular.’ It referred to information passed to the children’s schools. K attended a private boarding school and the two younger children a mainstream primary school. The IO was unable to make contact with the primary school. She said ‘From the Council’s record it was safe to say the school had been told something about the family’s immigration status, but I do not know what.’ The IO had received a response from the private school. The school explained the information the social worker asked for and what it had provided. It had sought the parents’ consent before doing so. The Council’s record shows the school confirmed the family had no income and it had not asked the parents to contribute to fees. Information about their immigration status was shared on a ‘need to know basis’. The IO found the school recorded the family were illegal immigrants who would have been issued with a deportation order. The social worker also had shared with the school financial information about the family. Mrs L alleged the false information contributed to, if not caused, K’s suspension from her school.
- The IO upheld this complaint. She was satisfied the social worker had discussed the family’s immigration status with K’s school and the information she gave was inaccurate and incomplete. In the IO’s view Mr and Mrs L had not given explicit consent and so the social worker had no right to share information about their immigration status. The Council’s Adjudicator disagreed with the IO. He said there was too much doubt about the events or the corroborating evidence to uphold the complaint. At stage three the Adjudicator explained to the panel that it was appropriate to share with the school information relevant to the family’s support through section 17 funding. It provided an opportunity for the school to monitor the children’s welfare. The panel accepted the Adjudicator’s view and did not uphold the complaint.
- The IO was unable to investigate the school’s decision to exclude K or to make a finding. But the school had volunteered some information. K started there in September 2014. The school was aware of the family’s financial circumstances. It was seeking seek alternative funding for K. But this was unsuccessful and in November Mr and Mrs L were asked to make up the shortfall in fees.
- Related to the above complaint was complaint 11: ‘establishing dishonestly our consent (sending an email suggesting that we gave consent when we did not) permitting contact with [the private school].’ The IO noted that Mr and Mrs L had signed consent forms at the Council’s office on 22 July 2014. The Council then had written to ask them to give permission for the private school to share information. Mr L replied stating his reservations and asking if it was necessary. He did not want K to be stigmatized. There followed a number of telephone conversations between the social worker and Mr L. He wanted the family’s immigration status kept confidential. The social worker sought legal advice. The advice was that she should explain to Mr and Mrs L the need for them to cooperate in gathering information. The Council sent them a letter explaining this. The social worker visited the family on 7 November. She recorded Mr L had given verbal consent for checks with K’s school. But he did not confirm this in writing. On 11 November the social worker telephoned the school. She gave some information about the family’s immigration status (as explained in paragraph 13).
- The IO decided Mr and Mrs L had given consent for welfare checks but not sharing information about their immigration status. She found this part of the complaint disturbing. She found the Council had not followed the framework of the Data protection Act 1998 on sharing information. She upheld the complaint.
- At stage three the panel partly upheld the complaint. The stage three report says the Council needed to make enquiries both about the welfare of the children and the family’s financial circumstances. But the social worker did not make clear enough to Mr and Mrs L what was involved. Even though Mr L had asked the Council not to tell the school about their immigration status the social worker did so. There was a missed opportunity to explain what action she would take and why. The Adjudicator agreed with the panel to partly uphold the complaint.
- Complaint 6 considered by the IO was ‘Holding a professionals’ meeting at the [primary] school on 28 November 2014 in the absence of the family, and a failure to involve the family in decision making.’
- The Council arranged the meeting. Representatives from the Council for the local area and both the schools attended. The Council took notes but did not distribute them. The IO said the Council’s record showed it arranged the meeting in two parts, with Mr and Mrs L being invited to attend the second part. The purpose of the meeting was to share information and transfer the case to the new authority. The IO found from the file notes that there was no evidence of discussion with Mr and Mrs L. They were told the meeting’s decisions about the role of the two councils. A note by the new authority explained the family’s immigration status was complex. They were appealing a decision that they should return to their own country. There also were questions about their financial means. The private school also provided its notes. It said:
‘All the information clearly shows that the family have gained a place by deception fraud. Thurrock clearly feel we should take action. The longer she stays with us then the parents may use this against us as a means of staying in the country...’
- The IO decided there were no child protection concerns and so no reason for the meeting to be held without Mr and Mrs L. The Council should have obtained their permission to hold the meeting in this way. The absence of minutes is a concern. She upheld the complaint. The Council’s Adjudicator did not agree. He found no evidence of fault by the Council in holding a meeting to share information. At stage three, the panel decided the Council should have informed Mr and Mrs L about the two stage meeting, and distributed minutes. It partly upheld the complaint. The Council’s Adjudicator disagreed with the panel. He decided the purpose of the meeting was to transfer the case. The plan always was for Mr and Mrs L to attend the second half only.
- In addition to the decisions above, the Adjudicator also upheld or partly upheld complaints about the following matters: a failure to provide copies of minutes of meetings, assessments and reviews; to work openly with the family; visiting the family on a Saturday; to change the social worker when they requested it; to make all financial payments consistently, and poor record keeping.
- The Adjudicator offered Mr and Mrs L £300 for their time and trouble in dealing with the complaint in view of the delay in dealing with it, and £70.10 for travel expenses. On behalf of the Council he apologised for those parts of the complaint that had been partly or fully upheld. The Council has confirmed that it has made the payment. It also has a time frame for putting in place learning points from the complaint in the areas of staff training and improved public awareness.
- The social worker’ dual role in cases such as this is a difficult one. In order for the family to be supported under Section 17 of the Children Act 1989 the family must have no financial resources. It means the social worker must carry out thorough and often intrusive enquiries about their financial circumstances. At the same time the social worker must oversee the welfare of the children as children in need, and support the parents’ care of the children. When she investigated Mr and Mrs L’s financial circumstances the social worker was not satisfied during the first few weeks that they had provided all the necessary information or been entirely truthful. They felt she disbelieved them. I recognize this probably was an uncomfortable process for Mr and Mrs L but I must acknowledge also the social worker had a job to do within the law and guidelines. The Council supported Mr and Mrs L with housing and subsistence throughout the period. In this respect, I have decided there is no evidence that they suffered an injustice as a result of fault by the Council.
- Mr and Mrs L also complain that the Council misinformed other agencies, particularly the children’s schools, about their immigration status. It seems to me the question is not only whether the information was accurate; rather it is whether the Council should have divulged anything about their immigration status. Mr L had specifically asked the Council not to share details about this with K’s school. But the social worker shared some information which she described as on a ‘need to know basis’. The IO found the Council’s actions disturbing, upholding this part of the complaint. The record does not show exactly what information the social worker shared with the school. There also was an exchange of information at the handover meeting on 28 November, which school representatives attended. Poor record keeping again means there is no record of what information was shared or detail of what took place.
- The panel and Council’s Adjudicator partly upheld the complaint about consent for sharing information with the private school. They found there had been a missed opportunity to explain to Mr and Mrs L what was involved. I agree an opportunity was missed. But I am more inclined to the IO’s view that the Council should not have disclosed information at all without Mr and Mrs L’s specific consent to do so. As far as I can see, there were no welfare concerns at the time which required the schools to know about the family’s immigration status. As far as the primary school is concerned I have seen nothing in the records to clarify what information the Council shared about immigration status. There is no evidence it had an effect on the children’s attendance there or their reason for leaving. It is less clear in K’s case. The private school withdrew her place after one term. K’s immigration status might have been relevant to the school’s decision. But the school did not confirm that and it is not for me to speculate about its reasons for withdrawing the place. But I believe there was fault by the Council in sharing the information without specific consent to do so. The injustice to Mr and Mrs L was the worry and uncertainty about the information being shared. The poor record keeping has contributed by making it impossible to establish exactly what information was shared. The Council then took far too long to deal with their complaint.
Recommended and agreed action
- In addition to those complaints which the Council has upheld I ask for the Council to apologise for providing information about Mr and Mrs L’s immigration status without their consent to some agencies, including the private school. I recommend that the Council should pay them £250 to recognize their worry and uncertainty.
The Council should review its procedures to make sure there is a clear record of information shared with other parties and the reasons for sharing it are explained.
The Council has offered a payment to recognize the delay in dealing with the complaint which is satisfactory.
- The Council was at fault in sharing information about Mr and Mrs L’s immigration status with other agencies, including their children’s schools, without their consent to do so. The Ombudsman recommends the Council should apologise and pay them £250. The Council has agreed to review its procedures for recording the sharing of information. The Council took too long to deal with the complaint but has offered a satisfactory remedy for the delay.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman