The Ombudsman's final decision:
Summary: Ms J complains the Council failed to tell her an assessment it planned to carry out was not mandatory. There is evidence of fault in the way the Council carried out the assessment and how it investigated Ms J’s complaints following this. The Council is asked to re-offer a payment to Ms J to acknowledge the time, trouble and distress it caused her. It is also asked to make procedural changes.
- The complainant, whom I shall call Ms J says the Council failed to deal properly with a referral made about her. The way the Council carried out its subsequent assessment on her and her family was also flawed. When Ms J made complaints, she says the Council failed to consider them appropriately and Ms J considered the remedy it proposed to be inadequate.
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)
- Under our information sharing agreement, the Local Government and Social Care Ombudsman will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
- We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
- 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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
How I considered this complaint
- I considered the information Ms J submitted with her complaint. I have also referenced the Children Act 1989 and ‘Working Together to Safeguard Children’ (2015), which was statutory guidance applying at the time detailing how different agencies should work together to protect children. I sent Ms J and the Council a copy of my draft decision and took comments they made into account before issuing a decision.
What I found
- Ms J was seeing a counsellor. She says the counsellor suggested making a referral to the Council as it might then pay for the counselling she was receiving. Ms J says she felt coerced by the counsellor into agreeing to this course of action. The counsellor made a referral alleging Ms J’s child, K, was potentially at risk from her and suggesting the Council should become involved with the family. Ms J did not see a copy of the referral at the time so was unaware of the content.
- After receiving the referral, the Council decided to carry out an assessment. Ms J says she twice asked the Council for a copy of the referral it had received but this was not sent to her. She eventually received a summary of the referral and was concerned to read information that she says was incorrect.
- Ms J was unhappy with the way the assessment was carried out.
- Ms J received a letter, referring to the first name of someone else’s child, acknowledging an assessment was not mandatory and that the person could remove consent. When Ms J read this she says she wanted to withdraw consent. She took copies of the letter.
- When she spoke to the manager of the officer who sent this, she says he suggested she would want to continue in order to ‘clear her name’ and get closure. The manager has told me he did not say this. On the balance of probabilities, however, given her strength of feeling Ms J would not have wanted to continue unless she felt the assessment would exonerate her. Ms J reluctantly agreed to continue. In the meantime, the officer contacted Ms J to ask if she could see K at school. Ms J did not want her to do this. Although she told me the officer said to her she did not have the choice; K was not seen at school.
- When the officer subsequently came to her home, she spoke to Ms J’s child, K alone thinking K was 6 rather than 4. The officer felt speaking alone to K was appropriate as she identified K knew truth from lie. Ms J told me she had some concerns about this but I cannot reach a finding as neither she, nor I, were in the room. The officer also asked Ms J why K was still in pull-up pants at night even though it is not unusual, given his age. Following the officer’s talk with K, she told Ms J that K had been assaulted by a teacher and there would have to be a safeguarding investigation. Once the officer left, Ms J spoke to K who, she says, was quite shaken. K reported the ‘assault’ was by a friend in the playground and not a teacher. Ms J called the officer who said she would return to their house. When the officer arrived, according to Ms J she said to K; ‘you can tell us the truth – don’t be afraid’ (which Ms J thought was patronising and unnecessary although the officer disputes this). Upon hearing what K had to say, the officer confirmed there would be no safeguarding investigation and left.
- On another occasion, the officer asked Ms J for the letter, sent to her in error, to be given to her. However, the officer did not ask for any copies taken of the letter to be returned.
- Ms J also asked for information about the initial referral but says the officer was not explicit she could provide any information about it. The Council says the officer agreed to provide information but could not do so to the timescale Ms J wanted. Ms J went to the officer’s manager to ask for this information.
- The officer’s manager apologised for the actions of the officer. He blamed this partly on their caseload. Ms J says she felt ‘manipulated’ by the conversation and decided to make a complaint.
Complaints and the assessment result
- The Council looked at Ms J’s complaint at all three stages of the statutory (children’s) complaint process. While the Stage One response was being completed, Ms J received a copy of the assessment. Ms J was unhappy the assessment did not say the social worker had K’s age wrong or consider the negative impact on a mother finding out her son had been apparently assaulted by a teacher (although these matters would not be included in an assessment). The assessment brought up historical issues about Ms J but Ms J says there was nothing about the background to the assessment in terms of what she had been experiencing at the time. Ms J felt the social worker was trying to expand on very negative things and that a picture was being painted that was not right even though no further action was proposed. The Council said the assessment came to an end at Ms J’s request.
- The Council did not ask Ms J to hand back copies she had made of the letter. The investigating officer at Stage Two said ‘it would be wise if you could hand (copies) over’ but Ms K did not do that because the case was ongoing.
- As an outcome to her complaints, Ms J was offered £250, at Stage Two, then a further £200 at the Stage Three Director’s response to remedy the injustice she had experienced. She did not feel this was sufficient.
What should have happened
- Once the Council received a referral it had a duty to act on it under ‘Working Together to Safeguard Children’, 2015 (which was the guidance that applied at the time). ‘Working Together’ says ‘The child and family must be informed of the action to be taken’. Ms J says the Council did not explain to her what it would do. The Council disagrees. The pamphlet I have seen does explain what assessments look like. I consider this would have informed Ms J of the action it would take.
- The Council said to Ms J the assessment, which was carried out, was done under Section 17 of the Children Act 1989 (children in need of a service) and was ‘not mandatory’. If Ms J didn’t give her consent, the assessment should not have been carried out. Ms J was not asked to give her consent at the outset and did not give it. This is fault. Had the Council been open about this, the complaint would not have arisen. Ms J should not have been told (or been given the impression) that an assessment might ‘clear her name’ or provide closure – she should have been told the facts of the case and that refusing to continue would not result in any further action. On the balance of probabilities, I consider this is fault given I do not see Ms J would have continued with the assessment unless she was convinced she would somehow benefit. This would also have highlighted to Ms J the social worker did not need to see K at school. Although, in Ms J’s view, the officer should have made it clearer that she required Ms J’s consent to see K at school, as he was not seen at school there is no fault.
- The Council would not generally share a referral with a complainant. This is because sometimes it might be evident who made the referral and the referrer might be put at risk because of it. There is no evidence of fault. The Council’s policy is to give a summary of a referral if the person it relates to asks for it. Ms J says the officer who came to see her did not know this and Ms J had to go to her manager. The Council says the social worker agreed to give information to Ms J but could not do so immediately. I cannot reach a finding when it is one person’s word against another’s. The information was provided to Ms J but it took longer than it needed to. Also, the information provided was, according to the Stage One investigation, ‘misleading’. This is fault.
- The Council should have ensured the social worker had the correct information about Ms J’s family before scheduling the assessment. Knowing a child’s age is critical. This is fault. The officer’s manager later blamed the officer’s caseload. This is fault because officers should conduct their work to a high standard irrespective of their caseloads.
- We would not criticise children being spoken to alone, if they were able (and it appears K was able) as this is good practice. But the Council was also at fault in failing to properly check information from this interview before relaying it to Ms J and before leaving the property. Ms J was understandably shocked and upset about the allegation K was hit by a teacher, especially when she found it was untrue. Ms J says K was also distressed by the way the allegation had been interpreted. Ms J has criticised what she felt was a ‘patronising’ tone used by the social worker when she returned to Ms J’s home in order to clarify the allegation. I have no independent corroboration of this so cannot find fault. The officer should have made sure she understood what K was saying before she left the house; involving Ms J as appropriate. Failure to do so is fault.
- Ms J initially withdrew her consent for the assessment when she received a letter meant for someone else, which acknowledged the person did not want an assessment and the Council would respect their wishes. The letter did not contain the person’s name and address and although Ms J said the person could have been traced, there was little that would merit doing this. The Council should have asked Ms J to return any copies she made of the letter. Not to do that was fault. Ms J said at Stage Three she would return or destroy any copies.
- Once Ms J made the complaint, she was not expecting the assessment to be sent to her. I do not consider this is fault. As the report had been started; it would normally be completed. If Ms J is unhappy that this information remains on file, when she did not ask for it, and it is incorrect, she should refer the matter to the Office of the Information Commissioner as the agency best placed to investigate.
- Ms J says the assessment talks a lot about her past but not about her present. An assessment has to include information about the past in order to give insight into the present. The Council has said to me that more discussion about the pressures that Ms J might have been experiencing as a single parent may have been helpful within the assessment although it did acknowledge the age of her children. The outcome was for no further action, which Ms J agrees with. I have already suggested she can approach the Information Commissioner if she believes this information should not be held on file.
- The Council addressed Ms J’s complaint although it took a long time to complete all three stages. At the first stage, the Council did not interview the social worker, which is fault because this officer was so heavily involved. By then the assessment had been completed and the Council was not involved with Ms J or her family. Ms J says she had to represent herself through the process but this is usual in complaints.
- The Stage Three panel criticised the Stage Two investigating officer for failing to investigate Ms J’s complaint that the data breach may have been a ‘systemic failure’. The Council had taken action at the time (the Stage Two report says ‘the correct channels were followed’) but there was no detail provided about that. The Council eventually provided information to Ms J in June 2019. This is fault. On the basis of the evidence there is no reason to ask the Council to take any further action as this remedied the injustice. If Ms J is concerned, she can also report this to the Office of the Information Commissioner.
- The failure to ask Ms J at the outset whether she would give consent to the Council to carry out an assessment is fault and it led to distress for Ms J as the complaint would have been avoided had the Council done so.
- Failure to provide information about the referral to Ms J promptly caused her distress.
- Failure to check family information before the assessment and then failing to clarify information received before the social worker left the family home caused Ms J time, trouble and distress. The actions of the manager in suggesting the assessment be continued and blaming the officer’s workload caused Ms J further distress.
- Delay in completing the statutory complaints process caused Ms J distress. The Stage Two investigation was also criticised for failing to provide sufficient detail as to whether the data breach was a ‘systemic failure’. This caused Ms J time and trouble as she thought this was very serious and wanted to know what actions the Council had taken as a result. The Council then wrote to her late to explain what its investigation had revealed. This caused further time and trouble.
- Failure to interview the social worker at stage one caused time and trouble for Ms J and might have avoided escalation. One piece of information was not sent to her before June 2019, when the Ombudsman was already investigating, which caused further time and trouble.
- In relation to distress and time and trouble, our guidance says that we normally look at between £100 and £300 for each depending on seriousness and duration.
- The Council offered Ms J £450, which is in line with our guidance. We are not a compensatory body so any request for compensation would have to go through the court. The amount the Council proposed is appropriate and no further remedy is necessary.
- For the Council to apologise for the fault in this statement within a month of the date of my decision.
- For the Council to make a payment of £450 to Ms J in relation to her time, trouble and distress within two months of the date of my decision.
- For the Council to change its procedures so it ensures parents are asked for consent, where appropriate, prior to assessments. The Council is asked to tell me what action it will take within four months of the date of my decision.
- For the Council to ensure social workers ask for appropriate information about a family prior to scheduling an assessment. The Council is asked to tell me what action it will take within four months of the date of my decision.
- For the Council to be clear what it will provide after information is requested about a referral and periodically quality manage the responses. The Council is asked to tell me what action it will take within four months of the date of my decision.
- For the Council to consider whether it provides sufficient evidence and guidance to Stage Two investigators so they understand the extent of investigation that is required when data breaches are questioned. The Council should also consider whether the information it provides for Stage One responses is sufficient given the social worker should have been interviewed even though it would have delayed the formal response. The Council is asked to tell me what action it will take within four months of the date of my decision.
- Notwithstanding the above, for the Council to ensure it keeps to statutory timescales when investigating complaints. The Council is asked to tell me what action it will take to achieve this within four months of the date of my decision.
- I have reached a finding of fault causing injustice. The Council has agreed measures to remedy the injustice.
Investigator's decision on behalf of the Ombudsman