The Ombudsman's final decision:
Summary: Mr Y complained the Council failed to tell him, in a timely manner, whether he could have contact with his niece and nephew who lived in the Council’s area. The Council was at fault for the time it took to share its view with him and for the distress caused. The Council has been asked to apologise and make a financial settlement.
- The complainant, whom I shall call Mr Y, says the Council failed to consider whether his brother’s children could be added to an approved list of children he could have contact with.
- Mr Y was convicted of sexual offences. He has a Sexual Harm Prevention Order, which states he is ‘prohibited from having or seeking contact or any communication with any child under the age of 16yrs other than…with the permission of that child’s parent or guardian, that person to be made aware of his convictions and with the express approval of social services for that area’.
- When he did not hear from the Council, when it said it would contact him, he came to the Ombudsman.
The Ombudsman’s role and powers
- 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)
- 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I spoke to Mr Y on the telephone and made enquiries of the Council and considered its response. I have sent Mr Y and the Council a copy of my draft decision and will take any comments they make into account before issuing a decision.
What I found
- Mr Y was told by his home council that it would contact the Council in relation to contact with children living in the Council’s area. The Council has no record of receiving the email on the day Mr Y’s home council says it was sent. As it is not possible to make a decision, even on the balance of probabilities, I cannot find the Council at fault.
- Because he had not heard from the Council, Mr Y made a formal complaint on 1 November. The Council asked for further information before it replied. Complaints should be responded to as quickly as possible. Three calendar weeks is relatively long although I am not minded to find fault given the Council said it had no knowledge of the matters complained of at the start until it received the documentation from Mr Y.
- The Council’s response of 22 November did not tell Mr Y anything specific. It said; ‘we advise that you discuss the situation with the parents who can provide further detail’ but not what that ‘detail’ might cover. The Council also said that his request to have contact with the children would be considered as part of a wider assessment on the family, which was due to be completed the following January. The Council told me it would have been ‘highly unlikely that the Council would approve contact’ (and I explain this in paragraph 14) but that is not what it said to Mr Y.
- Mr Y did not hear anything in January. The Council says it could not share information with Mr Y as he did not have parental responsibility. As the Council had told him it would consider his request as part of the assessment process, which would finish in January, I consider it was inevitable Mr Y would expect feedback then. Mr Y did not need parental authority for the Council to tell him it would agree, or not, to him having contact with the children. This delay is fault and it caused distress to Mr Y.
- Mr Y then had to come to the Ombudsman to find out what happened in his case. This is fault and it caused Mr Y time and trouble. I cannot look at this matter further, however. The children have now moved, with their father, to the other council’s area.
- From evidence the Council sent to me (which I cannot share with Mr Y) there were differences of opinion whether Mr Y was able to have supervised contact or no contact with the children over this time.
- Although Mr Y’s SHPO says only one parent needs to agree to contact; if a child has two parents (and one parent agreed to contact and one didn’t) the Council would, on the balance of probabilities, be unlikely to assess in order to give its ‘express approval’. This is because families have to be focused on children and not on wider family relationships. Mr Y was aware that contact without the ‘express approval of social services’ could lead to arrest and that would be the case even if both parents agreed to allow contact.
- For the Council to apologise to Mr Y for the distress it caused to him and to make a payment of £100 for time and trouble within a month of the date of my decision.
- The Council should amend its procedures so complainants receive as full a response to questions as possible, within agreed timescales, even if the response may be being handled as a separate piece of work. Had the Council answered properly in January, Mr Y would not have needed to come to the Ombudsman. The Council should tell me what action it will take within three months of the date of my decision.
- I have found evidence of fault leading to injustice to Mr Y. The Council has agreed to suitable actions to remedy that injustice.
Investigator's decision on behalf of the Ombudsman