Summary: There was fault in the way the Council investigated allegations against Mr X. The Council offered a financial remedy, but Mr X feels the Council should offer more. The Council should offer additional financial remedy to recognise the significant and prolonged period of distress. The Ombudsman is not able to assess Mr X’s claim for reduced earnings.

The complaint

1. Mr X complained about the Council’s handling of a safeguarding investigation against him. The original investigation findings have been overturned and Mr X is unhappy the Council did not follow the recommendations of the review Panel and adequately compensate him for distress and loss of earnings.

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What I have investigated

2. I have considered the Council’s offer of a remedy to Mr X. I have not investigated the Council’s handling of the allegations because an independent investigation and review Panel has already done this, and the Council has accepted it was at fault.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant, as well as the information we discussed in a telephone conversation.
• The Investigation Review Panel’s report and recommendations.
• Documents provided by the Council and its comments in response to my enquiries.
6. Mr X and the Council both had an opportunity to comment on a draft decision and I considered their comments before making a final decision.

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What I found

7. Mr X was working as a teaching assistant in January 2017. He told me he is a qualified teacher but had not worked as a teacher for several years. This was part of his phased plan to return to teaching by September 2017.
8. In January 2017 allegations were made about Mr X’s conduct at the school he was working in. The school informed the Council and Mr X was sent home on 9 January 2017 while it investigated.
9. The Council referred the matter to the Local Authority Designated Officer (LADO), an officer who oversees investigations when allegations are made about people who work with children. The LADO started the Council’s Allegations Against Professionals (AAP) process, which considers allegations about adults who work with children.
10. The allegations were considered at two Multi Agency Strategy Meetings (MASM), held on 13 January 2017 and 3 February 2017. A MASM involves agencies and professionals such as the police and social services. Most of the allegations were deemed unfounded or unsubstantiated but two allegations against Mr X were considered substantiated.
11. The Council confirmed the findings to Mr X by letter on 23 March 2017.It considered Mr X was still fit to work with children despite the substantiated allegations. It said there were mitigating reasons, such as naivety and a lack of training.
12. Mr X said the findings meant he could not gain employment with children in any capacity while the substantiated allegations remained in place. Instead he found work as a carer for adults with special needs.
13. Mr X complained to the Council about its investigation 13 July 2017. He said the investigation was inadequate, unfair and biased. He said the Panel took false information into account and failed to consider other relevant matters. The Council considered the complaint at all three stages of the statutory children’s complaints process. This is a formal procedure, set out in law, which involves investigation by an independent investigator and review by an independent Panel (the Panel).
14. The independent investigator found failings in the original AAP process and recommended all the allegations against Mr X be reconsidered.
15. A new MASM was held on 24 April 2018. It overturned the original findings. It found all the allegations against Mr X were either unfounded or unsubstantiated.
16. The Panel was convened to meet on 30 April 2018 to consider Mr X’s complaint at stage 3 of the complaints process. It said there was maladministration by the Council and recommended it consider offering a remedy to Mr X for the distress, loss of opportunity and reduced earning capacity its maladministration had caused over an eight-month period.
17. The Panel’s decision was communicated to Mr X on 18 May 2018.
18. The Council wrote to Mr X on 18 June 2018. It accepted some fault in the investigation process and apologised. It offered him £2,300 to recognise the distress he suffered. It said it could not consider his reduced earnings without evidence. It said it would reconsider its offer if Mr X provided further information.
19. Mr X wrote back to the Council on 21 July 2018. He said he intended to return to work as a teacher and the Council’s maladministration delayed this by 15 months. He said he had already supplied evidence of refused job applications because of the wrong findings against him. He said he had enrolled on a return to teaching course and registered with a supply teaching agency to start work in September 2018. He also said he had interviews at three schools and a college. He said his earning capacity reduced by over £22,000 over a 15-month period. He also claimed an added £1,805 for a seven-week delay by the Council communicating its original decision. He claimed a further £1,352.40 for legal advice he sought to bring his complaint.
20. The Council responded on 15 August 2018. It accepted a three-week delay in communicating its decision and increased its offer to £3,073 to reflect this. It said it could not simply accept Mr X’s assertion that he planned to return to teaching as he had only recently started temporary employment when the allegations were made. It therefore rejected his claim for loss of earnings. It also rejected his claim for legal fees as it said the process did not need legal advice. The Council directed Mr X to the Ombudsman if he disagreed with its decision.
21. Mr X wrote to the Council again in April 2019. He provided evidence of the return to teaching programme he completed and that he took up full time employment as a supply teacher in February 2019. This led to contracted employment by April 2019 which he also provided evidence of. Mr X said he had completed his return to teaching. He provided updated loss of earnings calculations of £41,000 which he asked the Council to consider.
22. The Council responded on 30 April 2019. It told Mr X its complaints process had finished and he should complain to the Ombudsman if he remained dissatisfied.
23. Mr X complained to the Ombudsman on 28 May 2019 as he was unhappy with the Council’s offer of a remedy. He said it had failed to consider his loss of earnings as the Panel had recommended.

Response to my enquiries

24. The Council told me it carefully considered the Ombudsman’s guidance on remedies when it decided on the maladministration payment it offered to Mr X.
25. It said its policy is to offer a fair remedy, but not compensation payments comparable to what the Courts might order. It said the Courts would consider reasons beyond the scope of its maladministration policy.
26. It said the Council only had limited evidence about Mr X’s claim of reduced earnings. At the time of his complaint, it was not clear he intended to return to work as a qualified teacher.
27. It said its primary duty is to safeguard children. It is normal for investigations to take a certain period and this is unavoidable. It fully understands the difficulties this can cause but it considers its apology and offer of payment to be a suitable remedy.
28. The Council said at stage 2 of the complaint process a new MASM was recommended to reconsider all the allegations against Mr X. When the new MASM overturned the original findings, the Council said this was a reasonable and fair remedy as it put Mr X back in the position he would have been in if the fault had not occurred. It said this was the outcome Mr X was seeking when he complained. It only considered a financial remedy after the Panel recommended it should.

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Analysis

29. The independent investigation identified serious failings by the Council. It found faults in the early AAP process. These were about the independent chair, safeguarding process, conclusions reached, delay, and wording of the final letter from the LADO.
30. The faults included a lack of clarity on details of two of the allegations discussed in the AAP meetings; lack of detail in the minutes of the meetings to explain how the allegations were examined and findings reached; lack of clarity of the chair about the roles of the different agencies and professionals involved in the AAP process; delay of seven weeks by the LADO in sending the final letter and; the final letter lacked clarity and was contradictory.
31. The Council has accepted responsibility for its mistakes in Mr X’s case and offered a remedy using guidance published by the Ombudsman. It has apologised and offered Mr X £3,073.68.
32. Mr X complains the Council has failed to address the impact of its mistakes. He says the Council’s response to the allegations had an adverse impact on his ability to work in the area he is qualified to work in and reduced the money he could earn.
33. Mr X says he has lost out on £41,000 in earnings because of the Council’s fault. He has provided a detailed breakdown of his claimed earning potential over the course of the Council’s investigations. He also incurred legal fees of £1,352.40.
34. Mr X has provided evidence to show his applications for work as a teacher, and to join teaching agencies, were rejected while there was a substantiated allegation against him. He has also shown he could join a teaching agency as soon as the findings were overturned.

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Mr X’s claim

35. The Council did initially consider Mr X’s potential reduced earning capacity but told him there was limited evidence and his intention to return to teaching was not clear. Mr X went back to the Council after he returned to teaching and provided further evidence, but the Council did not consider this and told him the complaint was closed.
36. The Council became involved because allegations were made against Mr X and it has a duty to investigate where children may be at risk of harm. Such investigations will inevitably cause significant distress to those involved.
37. However, the Council’s handling of the investigation has clearly caused Mr X notable added avoidable distress. This was recognised by the Panel, who recommended the Council offer Mr X a remedy. A significant payment for distress is justified in this case. The Council has offered Mr X a total of £3,073. This is broken down as follows:
• £750 in recognition of the prolonged period of distress experienced.
• £750 to recognise the distress caused by the wrong findings being in place for several months.
• £500 for loss of opportunity of working with children.
• £300 for time and trouble.
• £773.58 for loss of earnings caused by the delay in issuing its decision.
38. I do not consider this a satisfactory remedy for Mr X’s distress.
39. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, we may recommend the Council makes a symbolic payment to recognise what could have been avoidable distress, harm or risk. However, we do not recommend compensation payments in the same way as the Courts. We can consider quantifiable losses. Where large sums of money are claimed it is more fitting for the Courts to consider the matter, particularly where the losses are not certain and need professional consideration.
40. We have broad discretion to recommend remedies which we judge to be suitable. Our remedies guidance exists to help decide remedies in a consistent way, but every case must be considered individually according to the scale and significance of the injustice.
41. The Ombudsman’s guidance on remedies states up to £1,000 may be justified in cases where the distress is severe or prolonged. The Council has recognised the distress was prolonged in this case. I also consider it to be severe. It should increase its payments for distress to £1,000 for the two separate heads of distress it has identified.
42. The Ombudsman’s guidance also includes loss of opportunity under the heading of distress. The Council should increase its offer for loss of opportunity of working with children to £1,000, again based on the severe and prolonged nature of distress.
43. The Council’s offer of £300 for time and trouble is in line with the Ombudsman’s guidance.
44. Mr X asked the Council to pay £1,805.02 in lost earnings for the seven-week delay in sending its decision letter. The Council said there was no set timescale for LADO decision letters, but it considered 20 days to be a reasonable timeframe. As its decision letter took an added three weeks on top of the 20 days it offered Mr X £773.58 as a gesture of good will. This is reasonable.
45. The Council did not agree to repay Mr X’s legal fees because the complaints process did not need him to seek legal advice. I agree with its position. There is a three stage complaints process which includes an independent investigation that found in Mr X’s favour. I have seen no evidence the Council refused to allow Mr X to complain until he took legal advice.
46. The Council has not made an offer for Mr X’s reduced earning capacity or claimed loss of earnings as a qualified teacher. I do not propose to consider this further as the Ombudsman cannot assess Mr X’s claim. Our informal means of investigation are not suited to assess claims for compensation of this nature. While we can make findings about the Council’s actions, and decide where there was fault, we do not have the expertise to judge the impact of the Council’s fault on Mr X’s employment and financial position. These decisions need specialist judgement and are usually made by the Courts.
47. The Ombudsman can only make recommendations to remedy injustice. To make recommendations, there must be a direct link between any fault we identify, and the injustice claimed. In Mr X’s case, the fault is clear, but the link with the claimed injustice is less so. I do not doubt Mr X’s plan to return to teaching by September 2017. However, even if there had been no fault by the Council, I cannot say he would have been able to do so. I cannot assess the impact of the Council’s faults on Mr X’s earnings separately from the impact of the allegations themselves. In these circumstances, we can only recommend a payment for the distress and uncertainty caused by the Council’s mistakes.

Agreed action

48. Within one month of my final decision the Council agreed to pay Mr X £4,073.58. This is made up of:
• £3,000 to cover the separate heads of distress it has already considered (including loss of opportunity).
• £300 for time and trouble.
• £773.58 for the lost earnings caused by the delay in issuing its decision letter.

Service improvements

As part of the Panel’s findings it made recommendations to the Council about how it checks reports and manages timescales for complex complaints. I have therefore not made any recommendations to the Council about the failings leading to Mr X’s complaint.

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Final decision

49. I have completed my investigation. There was fault in the way the Council investigated allegations against Mr X. I have recommended the Council offers additional financial remedy to recognise the significant and prolonged period of distress. The Ombudsman is not able to assess Mr X’s claim for reduced earnings.

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Investigator's decision on behalf of the Ombudsman