Summary: Mr X complains about the Council’s role in the investigation of an incident at school where his son was placed in a room behind a locked door. There was fault in the Council’s role in the oversight of the investigation and in its handling of Mr X’s complaint. The Council will apologise.

The complaint

1. Mr X complains about the Council’s role in the investigation of an incident at school where his son was placed in a room behind a locked door. In particular he considers that:
• there was insufficient consideration given to the harm that was caused to his son by the incident;
• it was wrong the head of service considered his complaint and then did not respond to his concerns on the point; and,
• two of the decision makers were not impartial and should not, therefore, have been involved.

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What I have investigated

2. I am considering the management and oversight of the investigation by the Council and the complaint responses. I explain at the end of this statement the matters I am not considering.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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)
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

9. I considered the complaint and documents provided by Mr X and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr X and the Council and considered their comments.

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What I found

10. Local authorities have a responsibility, along with other agencies, to safeguard and promote the welfare of children and young people in their area, under the Children Act 1989. There is statutory guidance on how to do so in ‘Working Together to Safeguard Children, March 2015’. This says that local authorities should have an officer designated to be involved in the management and oversight of allegations against people who work with children. That officer is known as the Local Authority Designated officer (LADO).
11. The North Yorkshire Safeguarding Children Board Procedures Manual for Managing Allegations against Staff that was relevant at the time set out the role of the LADO and the procedures for agencies to follow. The procedure applies where there is an allegation or concern that a person who works with children has:
• behaved in a way that has or may have harmed a child;
• possibly committed a criminal offence against or related to a child; or
• behaved towards a child or children in a way that indicates he or she may pose a risk of harm to children.
12. The role of the LADO is to:
• Be involved in the management and oversight of individual cases;
• Provide advice and guidance to employers and voluntary organisations;
• Liaise with the police and other agencies
• Monitor the progress of cases to ensure that they are dealt with as quickly as possible consistent with a thorough and fair process.

What happened

13. Mr X’s adopted son, D, attended a community special school. There was an incident in late 2017 where D was placed in a room behind a locked door. After Mr X complained the next day the school referred the matter to the LADO. The LADO spoke to the police who considered the incident was not a criminal matter. The LADO advised the School there should be an independent investigation. The school instructed the Council’s human resources department (as part of a traded service arrangement) to undertake the investigation on its behalf.
14. When the investigation was complete there was an evaluation meeting held under section 10 of the managing allegations policy. The notes of the meeting record that the allegation was unfounded. The notes, in a section entitled information sharing, refer to a comment by the LADO that they were mindful that Mr and Mrs X were keen to talk to the investigator to ensure that D’s account had been taken into consideration during the investigation. There was a discussion and the investigator said he would speak with managers.
15. After the meeting the investigator spoke to Mr X and then emailed him. Mr X replied and the investigator produced a revised investigation report. This was considered at a further meeting in March. The outcome was that the allegation was unfounded.
16. Mr X complained to the Council in May and the Council responded in October. The Council partially upheld his complaint that there had been insufficient consideration given to the harm to D when considering the allegation and that more consideration should have been given to the actions of other staff involved.
17. Mr X remained dissatisfied and wrote to the Council again in December and March. The Council did not reply as by that time Mr X had indicated that he was taking legal action against the Council and coming to the Ombudsman.

Analysis

The response to the incident

18. There was no fault in the initial action by the Council. The LADO correctly contacted the police and arranged for the school to investigate the incident.
19. The key point is the consideration that was given to the impact on D and input from Mr and Mrs X to the evaluation process. The Council has accepted the investigation was not as robust as it should have been and is making changes to the managing allegations procedure so there is full consideration of any harm that may have been caused to a child both in any investigation and in evaluation meetings. It says it has been significantly amended to provide additional clarity in terms of roles and responsibilities in relation to the LADO, police, employer and other professionals involved. It should be approved soon.
20. The notes of the evaluation meeting in January 2018 record that a decision was made that the allegation was unfounded. It recorded actions to be taken which included informing the parents of the outcome. In commenting on the draft of this decision the Council said the meeting did not reach a conclusion to ensure that Mr and Mrs X’s comments were considered. The written evidence does not support the Council’s position. The notes of the meeting in January clearly record an outcome. And the notes of the meeting in March said “decisions taken following an evaluation meeting will normally be final and will not routinely be the subject of further review.” It went on that the investigator had amended his report to include some additional information provided by Mr X. It said “the purpose of this meeting was to consider the additional information provided by [Mr X] and to consider whether the information would have affected the managing allegations outcome which was unanimously agreed as Unfounded at the previous meeting”. So I cannot accept the comments the Council made that a decision had not been made: a decision had been made at the first meeting and was only revisited because of the concerns raised by the LADO about the involvement of Mr and Mrs X. I explain below in paragraph 26 why I have come to no view on whether the fault I find here has caused any significant injustice.

Membership of evaluation panel

21. Mr X considered it was wrong the headteacher of the school and the LADO took part in the evaluation meetings. The Council’s response to Mr X’s complaint found that more consideration should have been given to whether it was appropriate for the head to be involved. This was because of the previous issues which had led to the decision to appoint an independent investigator. The conclusion was that the outcome had not been affected because there was clear impartial involvement of the other members of the panel.
22. I agree with the Council’s conclusion it was wrong for the headteacher to be involved in the evaluation meeting. But there was not any fault in the LADO taking part. In support of his position Mr X has referred to internal emails which indicate the LADO had formed a view before the evaluation meeting based on the investigation report. And that Mr X had made another complaint which concerned the actions of the LADO about another matter. I do not consider that either of these points meant the LADO should not have been involved. It was not wrong for the LADO to have formed an initial view based on the investigation report and the Council considered that it was not necessary for a different officer to be appointed because of the other complaints. There is no fault in that.

Complaint handling

23. The Council’s complaint process that was in place at the relevant time said “On conclusion of their investigation, the IO [the investigating officer] will produce a report with any recommendations. This will be passed to a Director or Assistant Director (not of the service involved) for consideration and they will then respond to you with their findings on your complaint and will also send you a copy of the IO’s report”. The Council has commented that it was intended that if a Director responded it was to be of the service involved and it was only when it was an Assistant Director responding that it would be from a different service. The Council has accepted the wording is unclear and has amended its policy.
24. I accept the point made by the Council about the intention of the policy but I consider the wording was unclear.
25. The Council has also accepted it should have told Mr X why it was not going to correspond further with him.

Injustice

26. Where there has been fault I need to consider whether that has caused injustice to the complainant. As I mentioned above Mr X has started legal action against the Council. I consider the matters I have referred to above will not be before the court which is why I have investigated them. But part of Mr X’s legal claim is about the incident which is at the heart of this complaint. I consider there was fault by the Council in the management and oversight of the investigation of the incident but I do not consider I should come to any view on whether that has affected the outcome. That is because the legal action Mr X is taking could come to a view on the incident, the outcome and any remedy. It would not, therefore, be appropriate for me to be considering the same matter as the court.

Agreed action

27. The Council will apologise to Mr X for the unclear complaint process and the failures to explain why it was not going to correspond further with him. It should do so within a month of the decision.

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Final decision

28. There was fault by the Council in its management and oversight of the investigation of the incident and in the complaint handling.

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Parts of the complaint that I did not investigate

29. I am not considering the original incident or the investigation of it. Although the investigation was carried out by an officer of the Council this was not carrying out an administrative function of the Council but was the Council providing a service for and on behalf of the school. This means it is not within the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman