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Derbyshire County Council (18 011 812)

Category : Children's care services > Other

Decision : Upheld

Decision date : 28 Mar 2019

The Ombudsman's final decision:

Summary: Mr C says the Council was at fault for failing to tell him of an incident which posed risk to his children and to involve him in the investigation of that incident. Mr C says the errors cost him money on legal fees. The Council apologised for the errors after an investigation but the court proceedings were not related to the incident.

The complaint

  1. The complainant, who I have called Mr C, says the Council was at fault for:
      1. Failing to inform him of an incident involving his former wife’s partner which put his children at some risk;
      2. Failed to involve him in the single assessment of risk to the children;
      3. Failed to inform him of the result of the assessment; and
      4. Shared confidential information about him with his children’s school.
  2. He says these faults have caused him harm in that:
      1. He spent money on legal fees for contact proceedings that were wasted;
      2. His chances of gaining contact with his daughters were reduced; and
      3. He was embarrassed at work and his employment was put at risk by the data breach.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. We normally expect someone with a complaint about data protection to refer the matter to the Information Commissioner. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
  4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

  1. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered the response alongside the relevant law and guidance.
  2. I sent a copy of my draft decision to Mr C and the Council and invited comments.

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What I found

  1. Where a local authority receives a report that a child living in its area is at risk of harm, the authority must conduct a single assessment to assess the risk before deciding what, if any, steps to take to protect the child.
  2. The council must investigate any risks the child faces. The investigating officer should speak to the child and family and all relevant professionals. Information should be shared if appropriate.

The statutory complaints procedure for children’s complaints

  1. The Children Act 1989 established the requirement for local authorities to have a formal representations/complaints procedure to deal primarily with complaints by and on behalf of children and young people.
  2. This procedure is set out in the 2006 guidance Getting the Best from Complaints.
  3. The process has a three-stage structure. At stage one, a council responds to a complaint. If a complainant is not satisfied, they can ask for a stage two investigation. Stage two investigations are overseen by an independent person.
  4. If complainants are still not satisfied, they can request a stage three review. This is conducted by a panel which takes evidence from witnesses.
  5. Not all complaints about children’s services complaints must go through the statutory complaints procedure. Complaints brought by parents concerning their own rights rather than those of their children, can use the Council’s normal corporate complaints procedure.
  6. Once a council has opted to use the statutory complaints procedure, even if it does not have to, it should complete the process.

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What happened

  1. Mr S is divorced from his former wife, Ms E with whom he has two children. The children live with his former wife and her new partner, Mr E. Mr C does not currently have any contact with his children and was, when the incident took place, preparing for contact proceedings in the family court.

The incident

  1. In early 2018, Mr E became drunk and disorderly in the home he shares with Ms E and the children. Ms E, fearing for the safety of herself and her children, locked herself and them into the bathroom. Mr E threatened self-harm. An ambulance was called and this caused the Council’s children’s services department to carry out single assessments for both children.
  2. The social workers concerned did not contact Mr C for the assessment. He became aware of the incident when he was informed of it at court during the contact proceedings.
  3. The report contained information about Mr C. The Council shared the report with his children’s school and with the Children and Families Court Advisory Service. Mr C believed it also shared the report with his employer.
  4. Mr C complained. In its stage one response, the Council upheld Mr C’s complaint that he should have been informed of the incident and involved in the assessment. It apologised to him. It did not uphold his complaint that the Council had given his employer the single assessment report.
  5. Mr C was not satisfied with this decision and escalated the complaint to stage two. The Council appointed an independent person to oversee its stage two investigation. The investigation found:
    • The Council was at fault for not telling Mr C about the original incident;
    • The Council was at fault for not involving Mr C in the assessment process;
    • The Council was at fault for not sending Mr C copies of both children’s reports;
    • There was no evidence that anyone from the Council contacted Mr C’s employer or shared any information about him with it or any other organisation that it was not entitled to share it with.
  6. In its adjudication letter, the Council did not inform Mr C of the possibility of escalating his complaint to stage three, instead directing him to the Ombudsman. Mr C remained dissatisfied with this decision. He complained to the Ombudsman.

Was there fault causing injustice

Original incident

  1. The Council accepted, in its stage one complaint response, that it should have told Mr C about the original incident and should have invited him to contribute to the assessment. It accepts that the social worker was at fault for a failure to involve him and management was at fault for a failure to spot the error.
  2. These failures must have been upsetting to Mr C and this was an injustice. However, the Council has apologised. It informed the social worker who failed to contact him, a student, that she should have done so and has issued guidance to all staff saying they should always contact those with parental responsibility for assessments even if they have no contact with the children. It also found that Mr C’s input would have made no difference to the assessment process itself.
  3. The Council also invited Mr C to comment on the incident. His comments have been stored on the children’s files. Therefore, I find the Council has remedied any injustice Mr C suffered and I do not intend to propose a further remedy.

Injustice: contact/court costs

  1. I cannot find that the failure to inform Mr C of the incident or to involve him in the investigation had any impact on his chances of contact with his children or caused him any increased legal expenditure.
  2. Mr C had applied to the court for contact before the incident involving Mr E. Mr C heard about the incident at the court hearing in April 2018.
  3. There is no evidence that Mr C’s decision to bring proceedings would or could have changed if he had known about the incident nor that the children’s opinions on contact were altered by his lack of knowledge of the incident or non-involvement in the investigation.
  4. Therefore, I cannot agree with Mr C that the Ombudsman should recommend the Council pay him compensation for wasted legal costs.

Data breach

  1. The Council investigated allegations that the Council shared information with Mr C’s workplace. It found no evidence to support this complaint.
  2. CAFCASS shared the findings of the single assessment with his children’s school but this was not the Council’s responsibility and it is, in any event, standard practice. I do not find fault.
  3. In any event, Mr C has already complained to the Information Commissioner.

Failure to follow statutory complaints procedure

  1. Mr C complained about breaches of his rights and privacy. His complaint did not concern his children or their safety. Therefore, in my opinion, there was no requirement for the Council to use the children’s complaints procedure.
  2. However, the Council chose to use this process and, having done so, it should have offered Mr C a stage three review. The fact that it did not do so was fault.
  3. However, Mr C suffered no significant injustice because:
      1. His complaint was at least as thoroughly investigated as it would have been under the corporate complaints procedure; and
      2. the Ombudsman considered his complaint in place of a stage three review.
      3. On the evidence, the Council investigations were well-reasoned, fair and, on the evidence, reached the correct conclusions.

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Final decision

  1. I have decided the Council was at fault. It has already apologised and acted to ensure such failures do not recur. I do not recommend a further remedy. It was also at fault for its failure to follow the statutory complaints procedure. There was no injustice. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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