Durham County Council (18 006 692)

Category : Children's care services > Other

Decision : Upheld

Decision date : 04 Jan 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council disclosed information about a historic conviction to relatives caring for a child. The Council accepts it should have sought his consent first and has agreed to review its policies. The Council will also apologise and make a symbolic payment to acknowledge Mr B’s distress.

The complaint

  1. Mr B complains the Council disclosed information about a historic conviction to relatives caring for a child.

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The Ombudsman’s role and powers

  1. 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)
  2. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
  3. The Information Commissioner’s main concern is to improve the practices of organisations handling data. The Ombudsman considers the impact of any fault on the person making the complaint. We have investigated Mr B’s complaint to consider the impact of the disclosure on him.
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered:
    • information provided by Mr B;
    • information provided by the Council;
    • Information sharing. Advice for practitioners providing safeguarding services to children, young people, parents and carers published by the Government in July 2018.
    • Guidance on good practice: remedies, published by the Local Government Ombudsman in 2018.
  2. I invited Mr B and the Council to comment on my draft decision.

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What I found

  1. C, a child, was looked after by the Council. C was cared for by relatives.
  2. Mr B offered to help with C’s care by taking him out for the day.
  3. The Council undertook checks before agreeing to contact between Mr B and C.
  4. The Council obtained information from the Police National Computer (PNC). The Council has indirect access to the PNC through the local police, Durham Constabulary. Access to the PNC is granted by the Police Information Access Panel and governed by a Supply Agreement and Security Operating Procedures. The PNC contains sensitive personal information.
  5. The PNC check showed Mr B had a conviction for drink driving approximately 20 years ago.
  6. The social worker who requested the PNC check discussed Mr B’s conviction with C’s carers and said Mr B should not be allowed to drive C unless he was accompanied by his wife.
  7. Mr B complained to the Council. He was unhappy the Council had disclosed the information about his conviction without his consent.
  8. The Council referred the matter to its Information Management Team who advised Mr B should take the matter up with the Disclosure and Barring Service (DBS). The Council later clarified the information came from the PNC, not the DBS. The Council said it had used the information appropriately as the social worker did not want to ‘take any chances’ when safeguarding C.
  9. Mr B remained dissatisfied and complained to the Ombudsman.

Consideration

  1. C, was a looked after child. The Council was responsible for his welfare. The Council was right to carry out an assessment before agreeing to contact between Mr B and C.
  2. In response to my enquiries, the Council said the decision to share information about Mr B’s conviction with C’s carers without first discussing it with Mr B was made by the social worker “in an urgent situation in order to safeguard the child.”
  3. However, the Council accepts it should have spoken to Mr B and sought his consent before disclosing information to C’s carers. The Council says this is a learning point and it will review policies to ensure there is appropriate guidance for social workers and their managers when handling information from Police checks.
  4. The Council says B’s carers were already aware of Mr B’s conviction, and the social worker who spoke to them does not recall who mentioned it first. Mr B disputes this. He says C’s carers were not aware of his conviction. He says he got the conviction at the lowest point of his life, and the Council’s disclosure took away his right to privacy and meant he had to relive an extremely distressing time now that C’s carers are aware of his conviction.

Findings

  1. I find the Council was at fault for disclosing sensitive personal information about Mr B without first obtaining his permission. While I accept the Council had a duty to safeguard C, it does not appear the situation was so urgent that it was necessary to share information about Mr B’s conviction before obtaining his consent.
  2. Further, Mr B’s conviction is ‘spent’. It is an offence to disclose information about a spent conviction. The Council did not consider whether it was appropriate to disclose information about Mr B’s spent conviction. This is fault.

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Agreed action

  1. The Council has already agreed to review policies to ensure there is appropriate guidance for social workers and their managers when handling information from Police checks, including how to deal with spent convictions. I welcome the Council’s undertaking. I would ask the Council to send me its revised policies and guidance within three months of my final decision.
  2. The Ombudsman must also consider whether any fault has had an adverse impact on the person making the complaint. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mr B, we may recommend the Council takes other steps. We may recommend the Council makes a symbolic payment to acknowledge what could have been avoidable distress, harm or risk.
  3. When the Ombudsman recommends a payment for distress, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300.
  4. I recommended the Council apologise to Mr B for disclosing information about his spent conviction to C’s carers. I recommended the Council make a payment of £300 to recognise Mr B’s distress, and his time and trouble pursuing his complaint. I would ask the Council to send the apology and make the payment within one month of my final decision.
  5. Councils must inform the Information Commissioner when personal data is disclosed if the disclosure is likely to affect the subject’s rights and freedoms. The Council does not consider it necessary to refer the matter to the Information Commissioner because C’s carers already knew about Mr B’s conviction. As Mr B disputes this, I recommend the Council refer the disclosure to the Information Commissioner. Mr B’s complaint has shown the Council does not have adequate safeguards in place to ensure sensitive personal information from the PNC is handled properly.
  6. The Council accepted my recommendations.

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Final decision

  1. The Council accepts my recommendations so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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