Summary: Mrs X complains about the procedure carried out by the Council’s Designated Officer for Allegations. She says this led to an incorrect finding being made against her which has had devastating consequences for her both personally and professionally. The Ombudsman has found fault because the procedure did not allow for a proper consideration of her version of events. There was also fault with the complaint procedure which was too restrictive in its remit and its failure to make a referral to the Disclosure and Barring Service. To remedy this, the Council has agreed to apologise, make a payment to Mrs X and investigate her complaint again.

The complaint

1. Mrs X complained about the procedure followed by the Council’s Designated Officer for Allegations (DOFA) following allegations made about her conduct. In particular, she complained about:
1. Not being told about the DOFA process.
2. Not being able to participate in the process and give her version of events.
3. The decision was based on inaccurate evidence and hearsay.
4. No account was made of her positive contribution to her job and wider community.
2. She says this caused her significant distress which has affected both her mental and physical health. It has also affected her financially as her future employment opportunities are now limited.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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

6. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X;
• made enquiries of the Council and considered its response;
• considered the relevant statutory guidance “Working Together to Safeguard Children (2015)” and the Council’s “Policy for Managing Allegations against Staff and Volunteers”;
• spoken to Mrs X; and
• sent a draft version of this decision to both parties and invited comments on it. Comments received have been taken into consideration.

7. I have exercised discretion to consider events back until 2015 because Mrs X only became aware of possible fault and injustice after she was notified of the DOFA investigation in May 2018. Since this date she has been trying to pursue her complaint through the Council’s complaints process and then to the Ombudsman.

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What I found

Guidance and policy

8. 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’. (I have considered the version issued in 2015 as this was the relevant guidance as the time. It has since been updated in 2018). 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 Designated Officer for Allegations (DOFA).
9. The Wiltshire Safeguarding Children Board Policy for Managing Allegations Against Staff and Volunteers sets out the role of the DOFA and the procedures for agencies to follow.
10. The procedure applies where there is an allegation or a 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.
11. Relevant to this complaint, the policy states the person about whom there is a concern should be informed of the allegation/concern as soon as possible after consulting the DOFA. They should also be told how enquiries will be conducted and sources of support and advice. There is no provision within the policy for the individual who is subject to an allegation to be a party to the strategy discussions.

The events that led to Mrs X’s complaint to the Ombudsman

12. Mrs X worked for a local charity (“the Charity”) in a management role.
13. In October 2016, Child Y made a disclosure that she had been sexually abused a year earlier by Mrs X’s son in law (Mr B).
14. Child Y’s mother, Ms D, was a friend of Mrs X’s daughter. Mrs X says she provided support to Ms D in both a personal and professional capacity. The previous year Ms D had asked Mrs X for help when she found explicit photos on Child Y’s phone.
15. On the day Child Y made her disclosure at school, the police asked to see Ms D. Ms D asked if Mrs X could accompany her. The police refused this request and told Ms D not to discuss the matter with Mrs X. Mrs X emailed the social worker from her work email address asking if the police investigation was about her or anyone she was connected with. Mrs X says she did so on advice of a professional third party because she thought the police may have been related to a charity event Mrs X had been involved with. She provided a form of authority from Ms D.
16. During the police investigation into Child Y’s allegations against Mr B, Mrs X provided an inaccurate witness statement about her whereabouts on a particular night that was relevant to the investigation about Mr B. She later withdrew this statement when she realised she had made a mistake.
17. Concerns about Mrs X’s conduct were referred to the Council’s DOFA by a social worker. The social worker said she was concerned about a number of interactions between Mrs X, Child Y and Ms D.
18. Upon receipt of this referral, the DOFA convened the first meeting of interested parties, including two social workers and two police officers. Mrs X was not aware this process had been started.
19. Shortly afterwards, Mrs X was arrested on suspicion of perverting the course of justice. She was put on police bail.
20. At the next DOFA meeting, one of the action points was for her employer to advise Mrs X of the DOFA process. The Council was to send her employer a template letter to use. This letter was not sent so Mrs X was not aware of the DOFA investigation about her.
21. Shortly afterwards, Mrs X was suspended on full pay pending a disciplinary investigation by the Charity.
22. A DOFA review meeting took place two months later. This was attended by the Chairman of the Charity (“Mr M”). Mr M said he was awaiting to hear from Mrs X’s solicitors with her response to the allegations. He told the meeting she had been given an opportunity to meet with him but she had declined.
23. Five months later, at the next review meeting, Mr M informed the DOFA meeting that Mrs X had resigned before the disciplinary hearing had taken place. Before this he had received legal advice that there were grounds for dismissal. He said his investigation was not related to any police investigation, but it was conducted in respect of her role as the general manager of the Charity, her relationship with him as her line manager and her duty of care towards the Charity and its trustees. He said she had refused to co-operate with his investigation.
24. Mrs X disputes this version of events. She says she was advised by her solicitor not to meet with Mr M as there was a possible conflict between the disciplinary procedure and the ongoing police investigation following her arrest. Instead her solicitor wrote to Mr M asking him to be more specific in the questions he was asking. Despite Mr M not doing so, Mrs X provided a statement to him with her version of events.
25. Shortly before the scheduled disciplinary hearing, Mrs X tendered her resignation. She said this was because of her untenable working conditions, unrelated to the ongoing disciplinary proceedings.
26. In August 2017, the CPS decided there was insufficient evidence to provide a realistic prospect of conviction. Criminal charges against Mrs X were dropped
27. In May 2018, the DOFA meeting made its decision that the allegations against Mrs X were substantiated. Mrs X was notified by letter of the outcome and that a referral would be made to the Disclosure and Barring Service (DBS). This was the first she knew about the DOFA investigation and its consequences. The letter did not contain any detail about the allegations but said she could make a subject access request to find out more which she did.

Mrs X’s complaint

28. In September 2018, Mrs X complained to the Council. The Council’s stage one response in October 2018 did not uphold her complaint. She complained again at stage two and some aspects of her complaint were upheld. Specifically:
1. Mrs X had not been notified of the DOFA investigation. This task was given to Mr M and there was no evidence this had taken place. But the Council said the injustice arising from this was limited because she would not have had an opportunity to contribute to the DOFA investigation in any event.
2. Mrs X had not been properly notified of the allegations made against her that were substantiated in the decision letter. But the Council decided there was no injustice to Mrs X because it took the view she would have already been aware of what they were. Also, as there was no right of appeal against the DOFA decision, this again caused only limited injustice to Mrs X.
29. The Council said it had learned from its mistakes and put in place some service improvements, particularly around notification with the person against whom concerns had been raised.
30. The Council did not uphold her other complaints about:
1. The fact her positive contribution was not taken into account.
2. The quality of evidence was poor, incorrect or unfair.
31. Her request for her case to be reheard was refused. This investigating officer said there was no scope within the complaint procedure for the decision or the policy to be changed.
32. In respect of Mrs X’s submission that the evidence presented to the DOFA was unreliable, the investigating officer said the complaints procedure did not allow for this to be considered.
33. Dissatisfied with this response she complained to the Ombudsman. She also told the Ombudsman that upon making enquiries of the DBS, she had been informed no referral had been made by the Council. In response to the Ombudsman enquiry about this matter, the Council said, “when it was realised that the referral had not been made the complaint was underway and consequently we have been awaiting a conclusion to this before undertaking further action in relation to this point”.
34. While the Council has accepted some fault in the matter it does not accept there was any significant personal injustice to Mrs X. Mrs X says the Council’s stage two investigation and response does not address the following matters;

• The significant injustice caused by its failure to notify her of the DOFA investigation.
• The significant injustice caused by its failure to notify her of the allegations that had been substantiated.
• Both the DOFA procedure and decision were affected by fault because no account was given to her version of events and her wider contribution.

Analysis

35. The Ombudsman is not an appeal body and does not retake decisions properly made by a Council. The Ombudsman’s role is limited to checking if there was any fault in the way a decision was made. If there was no fault or flaw, the Ombudsman may not, by law, intervene in the judgment reached by the Council. This is the case even where the Ombudsman may have given different weight to a piece of evidence or reached a different decision on the same facts.
36. I have considered each of the matters complained about below where Mrs X was dissatisfied with the outcome of the Council’s own investigation. I will not make further findings in respect of the areas of fault already identified by the Council at paragraph 28 above. But I will consider whether there was any significant injustice to Mrs X that has not been acknowledged by the Council.
37. As part of this analysis I will also consider whether there was fault in the way the Council dealt with her complaint.

Failure to notify Mrs X about DOFA process

38. The Council has accepted there was fault here but decided there was no significant injustice to Mrs X because she was not entitled to contribute to the process in any event. Mrs X disagrees with this conclusion. She says that had she been made aware of the process she could have made a subject access request much sooner. Mrs X says she, through her solicitor, could have responded indirectly to the process.
39. It is entirely possible that she may have decided not to resign had she known how this could be perceived by the DOFA enquiry. I have no doubt, having discussed the matter with Mrs X, that she would have ensured that her “case” was fed into the DOFA process.
40. The DOFA could then have decided whether to consider her evidence and if it did, what weight to attach to it. She is of the strongly held belief that had the panel been able to see her evidence, they would have reached a different conclusion.
41. But the DOFA process makes it clear that the alleged perpetrator is not at any stage invited to attend or make representations. I understand it may appear to be unfair that Mrs X was not allowed to participate and about her lack of right to reply. But as the Council explained, it was not for the DOFA to investigate the allegations. This was primarily for the police and Mrs X’s employer.
42. The evidence shows Mrs X was involved with both of these investigations and had an opportunity to challenge the information presented to her. She did so personally and through her solicitor.
43. However, a problem arose in this case because Mrs X’s version of events was not communicated to the DOFA, particularly by Mr M. I will address this area of possible fault later in this decision statement.
44. I disagree that there was no injustice to Mrs X from her being unaware of the DOFA investigation. The criminal charges were dropped and as far as she was concerned the matter was closed. She had found alternative employment and was moving on with her life, albeit still affected by what had happened. It came completely out of the blue that this process had been ongoing for over a year and a possible outcome was a DBS referral. It is entirely understandable why she experienced the distress she did, especially when she found out she did not have a right to reply.
45. Had Mrs X been aware of the DOFA process, it is entirely possible this could have affected her decision to resign. The Council has said the evidence does not support this conclusion. I disagree. As soon as Mrs X became aware of the outcome of the DOFA process she has been tenacious in her attempts to, as she would say, to “clear her name”. On balance, I consider it is a reasonable conclusion that had she been aware of the DOFA process, it would have influenced her decision whether to resign or not.
46. This distress, compounded by the fact she was denied the opportunity to participate, even at arm’s length through one of the other investigations, is a significant injustice.

Failure to detail the allegations that were made against her in the outcome letter

47. The Council, in its second complaint response, accepted the outcome letter did not provide Mrs X with sufficient information about the allegations that had been found to be substantiated. I agree with this conclusion. I have read the letter, and found it to be inadequate, particularly when read in the context of Mrs X being unaware of the process and the potential sanction of a DBS referral.
48. While accepting this fault, the Council decided there was no significant injustice to Mrs X. I disagree. It is entirely understandable that receipt of this letter out of the blue, would come as a tremendous shock. Mrs X then had to make a subject access request to find out the detail. This will have taken time, during which time Mrs X had considerable uncertainty. It took months for a response to such a request to be received. It is understandable that Mrs X would be upset and anxious during this time, even though she may have known it will have been in connection with her previous arrest. This distress, and period of uncertainty, is a significant injustice.

Failure to take into consideration Mrs X’s positive contribution

49. The Council said the purpose of DOFA was to consider the allegations in the context of child protection.
50. Mrs X expected it to be a more holistic assessment of her role, responsibilities and actions.
51. I agree with the Council’s position.
52. This may have been a relevant factor for her employer to take into consideration during the disciplinary hearing but there was no obligation on the DOFA to do so. There is no fault here.

Quality of evidence was poor, incorrect or unfair

53. Mrs X says the DOFA investigation was flawed because:

• The investigation by her former employer was affected by fault. She says her employer lied when he informed the DOFA meeting that she would not participate in the disciplinary proceedings against her.
• It did not have the benefit of seeing contradictory evidence about certain events involving Mrs X and Ms D that she says would have proved Mrs X’s “innocence” and led to a different outcome.
• The social worker had referred to statements from third parties that did not exist and were in any event hearsay evidence.

54. Mrs X tried to present this evidence to the Council during the complaint procedure.
55. The Council said its complaint process could not consider this.
56. Instead it said the complaint investigation could only consider whether the DOFA had followed the proper procedures.
57. The Council’s position was, “the corporate complaints process can only look at whether the Council officers have followed the correct legal requirements and have complied with relevant guidance or council policies. It is not within the remit of the process to change any decisions that officers have taken within their delegated authority, or change adopted policies. In this case therefore I have only been able to look at whether the DOFA process was carried out properly and in accordance with the policy that applies to that process”.
58. I have checked the Council’s complaint procedure. This confirms the complaints procedure will not deal with complaints about policies.
59. But in this case, the complaint was not a complaint about the policy itself, rather how the process was carried out.
60. It cannot be correct that, if the outcome of a complaint investigation is that the Council made a mistake, that a change of that decision is not possible, regardless of the policy under which that decision was made. This flies in the face of the principle of “natural justice”, particularly as there was no avenue for Mrs X to appeal the decision under the procedure. Similarly, if a complaint investigation revealed a flaw in a particular Council policy, then a sensible outcome would be for such a policy to be changed.
61. I have three problems with this approach:
1. This limited scope is not included within the Council’s complaint policy. While the Ombudsman does not expect a complaint investigation to question the merits of a professional decision, this does not mean as long as the policy is followed that every decision made by a Council officer is correct. For example, where that decision was based on flawed, misleading or missing evidence.
2. Even with the complaints procedure included this type of restriction, the inability to either change an officer decision or policy when found to be wrong, is too restrictive.
3. The Ombudsman expects councils to use discretion appropriately and to take individual circumstances into consideration when applying policies. I have seen no evidence that the Council considered using its discretion.
62. The principles of natural justice must allow for the alleged perpetrator to have “a voice”. The justification for Mrs X not being allowed to participate is that her voice was “fed in” via the other investigations, particularly those by the police and her employer. But Mrs X says this did not happen.
63. One of the reasons for this is because Mrs X resigned from her position prior to the disciplinary hearing. In my view, it is important to see what the DOFA panel was told about this. I would expect to see an accurate and balanced account of what happened.
64. I have carefully considered the minutes from the strategy meeting held in June 2017 which was the first one held after Mrs X’s resignation. There is reference to:

• Legal advice that Mrs X “had a case to answer to”.
• A disciplinary hearing had been scheduled and “Mrs X declined to meet with him (Mr M)”.
• Mrs X declined the hearing and sought for it to be rescheduled.
• The hearing was reset but Mrs X resigned without a reference.
• “Mrs X resigned prior to a panel hearing that was not in respect of a criminal matter, it was around issues of trust and not notifying elements of an obvious situation”.

65. By way of balance, I have considered evidence provided by Mrs X as part of her complaint to the Ombudsman. This included the following:

• A letter from Mrs X‘s solicitor to her employer saying she wished to co-operate with the investigation but required further clarity on certain issues.
• A detailed statement from Mrs X to her employer setting out her defence to the claims made against her, including an explanation for the email she sent to the Council requesting information about Child Y’s allegations.
• A letter to her employer setting out a number of areas of grievance about her employment, none of which related to the main contentious issues.
• Reference to a confidential settlement agreement between Mrs X and the Charity.

66. None of this information was given to, or considered by, the DOFA.
67. I agree with the general Council’s position that the complaint investigation was not to determine whether the DOFA had come to the right decision or not. But, if the alleged perpetrator says they have evidence that directly contradicts the main evidence upon which the DOFA made its decision, I cannot see how, in the spirit of natural justice, this can be ignored.
68. From the evidence I have seen, on balance, I am satisfied Mrs X’s explanation about why she took the action she did, while made available to Mr M, was not communicated to the DOFA by him and it should have been, albeit in limited terms due to the confidential nature of the settlement agreement. In addition, Mrs X has provided evidence that contradicts what the social worker told the meeting.
69. The correct approach would have been to consider Mrs X’s evidence and form a view about whether this potentially cast doubt over the decision. The outcome may well have been the same, but in my view the Council took an overly restrictive approach to its handling of her complaint when it refused to consider evidence the complainant presented. This is fault.

Failure to follow up on DOFA recommendations

70. The main outcome arising from the DOFA enquiry was for a referral to made to the DBS. This could potentially lead to Mrs X being prevented from working with children or vulnerable adults or both, which had been her chosen career and source of income. The personal implications of such a restriction to Mrs X were significant. Mrs X had a right of appeal via the DBS to her name being included on the barred list.
71. Mrs X only found out she had not been referred by contacting the DBS directly.
72. In response to my enquiries about this the Council said, “when it was realised that the referral had not been made the complaint was underway and we have been awaiting a conclusion to this before taking any further action in relation to this point”.
73. Mrs X first complained to the Council in September 2018, approximately four months after the referral should have been made. The Council has never told Mrs X at this time, nor in the stage two response that the DBS referral was on hold pending the outcome of the complaints processes.
74. The purpose of the DOFA process is to ensure that vulnerable groups are protected going forwards. Hence the DBS referral being the outcome here. But failure to make a referral casts doubt over the purpose of the exercise and could have potentially serious consequences.
75. This is fault that has caused Mrs X a significant injustice. She has spent over two years dealing with uncertainty about her future employment. It also effectively denied Mrs X her only right of appeal over the allegations made against her.
76. This was entirely avoidable had the Council either made the referral when it should have done or at the very least told her it had not happened at the time of her first complaint response in September 2018.

Conclusion

77. The Council has already put a number of measures in remedy the fault it had already accepted about communicating better with the subject of the DOFA investigation. I welcome this.
78. But I do not consider this adequately reflects the significant injustice caused to Mrs X. Nor does it address the other areas of fault my investigation has identified. My recommendations below, that have been agreed by the Council, seek to properly acknowledge the significant stress, anxiety and uncertainty caused by the Council’s faults.

Agreed action

79. To remedy the significant injustice to Mrs X, the Council has agreed to do the following:
1. Apologise in writing to Mrs X for the faults identified in this decision statement.
2. Reconsider Mrs X’s complaint about the DOFA process. The investigating officer should have no previous knowledge of the case and should consider the evidence Mrs X had previously submitted. Two of the possible outcomes of this could be arrange for the matter to be reconsidered by the DOFA and to review the DOFA policy. The Council could also decide the DOFA decision was correct. But this is a matter for the Council to decide, not the Ombudsman.
3. Pay Mrs X £1000. This is a symbolic payment to acknowledge:

• the time and trouble Mrs X spent pursuing her complaint,
• the distress caused by Mrs X not being told about the DOFA investigation,
• the distress caused to Mrs X by the poor decision letter,
• the distress caused to Mrs X by the failure to carry out the DOFA recommendation, and
• the distress and frustration caused to Mrs X by the Council’s overly restrictive approach to her complaint.
4. Ensure this decision statement is read by the DOFA.

80. Action points a), c) and d) should be completed within four weeks from the date of my final decision. Action point c) should be completed within 12 weeks from this same date.

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Final decision

81. The Ombudsman had found the Council’s DOFA process and subsequent complaint procedure were affected by fault. To remedy the injustice caused, the Council has agreed with the Ombudsman’s recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman