Lincolnshire County Council (20 001 052)

Category : Children's care services > Other

Decision : Upheld

Decision date : 05 Feb 2021

The Ombudsman's final decision:

Summary: Mr B complained the Council failed to follow the right procedures when carrying out an age assessment and failed to tell Mr B about the decision and how he could challenge it. The Council failed to follow the guidance when carrying out the age assessment and did not provide Mr B with a written record of the decision and how to challenge it. We cannot speculate about whether that affected the decision on Mr B’s age, although failure to follow the process meant he may have missed out on some support. An apology, payment to Mr B, training and providing information to officers is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained through his representative (whom I will refer to as Ms C) that the Council:
    • failed to follow the right procedures when carrying out an age assessment in 2017; and
    • failed to tell him about the decision and how he could challenge it.
  2. Ms C says the Council’s age assessment was therefore unlawful.

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The Ombudsman’s role and powers

  1. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and Mr B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. 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.

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What I found

Background

  1. Mr B came to the UK in 2017. On his arrival he was subject to an age assessment to decide if he was a child.
  2. The Council's age assessment determined Mr B was over the age of 18 and not a child.
  3. In 2019, Ms C complained to the Council on Mr B’s behalf. Ms C complained the age assessment conducted by the Council did not follow the guidance for age assessments. Ms C complained the Council did not provide Mr B with an appropriate adult, carried out the assessment in an inappropriate location and failed to take Mr B's presentation into consideration. Ms C also complained Mr B was not offered follow up support.
  4. The Council stands by the age assessment and says the guidance for age assessments is not statutory.
  5. Ms C says Mr B could not complain about the assessment earlier because he was a child and the Council did not provide him with a full copy of his assessment or information on how to complain.

Relevant Guidance

  1. The Association of Directors of Children’s Services have issued guidance on completing age assessments (the guidance). This says in scheduling the assessment interview it is important to ensure the child or young person has had sufficient time to recover from their journey to the UK and is not tired or hungry.
  2. The guidance says most age assessments should be completed within 28 days. However, the timescale for assessment should be responsive to the needs of the child or young person. In cases where you have clear reasons to believe an individual is a child (or indeed an adult), then a decision on age may be made more quickly.
  3. The guidance says facilities such as police stations would not be considered appropriate for conducting age assessments, and every effort should be made to take a child or young person out of a police station in order to conduct a lawful assessment.
  4. The guidance says a child or young person undergoing an age assessment must have the opportunity to have an appropriate adult present with them during the interviews. An appropriate adult should be independent of the local authority. Their role is to ensure the child or young person understands the questions posed to them, and that the assessing social workers conduct the age assessment in a child-friendly, clear and transparent manner.
  5. The guidance says the child or young person should be advised both verbally and in writing that they may be able to challenge the decision and how to seek further advice regarding their assessment. It is recommended the child or young person sign an acknowledgement of receiving the conclusion of the age assessment.
  6. The National Referral Mechanism guidance (NRM) is a framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support. Modern slavery includes human trafficking.
  7. The NRM guidance says if you think modern slavery has taken place the case should be referred to the NRM so the Single Competent Authority (SCA) can fully consider the case. Individuals who are recognised as a potential victim of modern slavery through the NRM have access to specialist tailored support for a period of at least 45 days while their case is considered.

Analysis

  1. Ms C says when the Council carried out its age assessment in 2017 it failed to follow the right procedures. Ms C says failure to follow the right procedures means the Council’s age assessment of Mr B is unlawful.
  2. It is not the Ombudsman’s role to decide whether the Council’s actions are lawful. That is a matter only a court can decide. I have therefore instead considered whether the Council followed the right process and took into account the guidance I refer to in paragraphs 13-17.
  3. I have some concerns with how the Council carried out the age assessment. First, the guidance is clear a police station is not a suitable place for an age assessment. In this case though social workers interviewed Mr B at the police station. It is therefore clear the Council failed to follow the guidance. The Council has pointed out the guidance is not statutory guidance. I accept that. However, the Ombudsman would expect the Council to follow the guidance unless there was good reason not to do so. I have found no evidence the Council had good reason in this case. In reaching that view I am aware the Council says it tried to arrange to accommodate Mr B in accommodation for young people overnight but could not do so due to the lateness of the hour. The evidence I have seen though satisfies me the intention was for a representative from the young people’s accommodation to collect Mr B the following morning and the Council has no explanation as to why that did not happen. Given there was an alternative option for location and as the guidance is clear police stations are not suitable places to conduct age assessments I find the Council’s decision to conduct the age assessment at the police station fault.
  4. I am also concerned the age assessment interview took place without Mr B having access to an appropriate adult. Again, the guidance is clear an appropriate adult should be present at the interview. The Council says social workers recall an appropriate adult was present at the interview. However, that is not supported by the documentary records. The documentary records include a section on the outcome of the age assessment recording those present at the interview. Only four people are recorded as present on that document. They are Mr B, the two social workers and the interpreter. The section for the appropriate adult is blank. The Council suggests a signature which appears on the form is the signature of the appropriate adult. However, the signature the Council is referring to is not in the section for the appropriate adult. Also, the rest of the entries for the four people recorded as present are completed in capitals rather than providing a signature. Where the signature appears it is at the end of the line completed by the interpreter. I therefore consider it more likely than not, on the balance of probability, the signature is the interpreter’s signature rather than the appropriate adult. In reaching that conclusion I have taken into account the fact the Council cannot identify any agency providing an appropriate adult for the interview and Ms C has contacted the police station who have no record of an appropriate adult being present. Failure to ensure the interview took place in the presence of an appropriate adult is fault.
  5. Ms C has also raised concerns about the way in which the interview took place. Ms C says social workers had formed a view of the likely age of Mr B before the interview took place and then asked questions to seek to confirm that view. It is clear from the documentary records that social workers believed Mr B appeared older than 16. However, the handwritten notes taken by the social worker record the questions social workers asked Mr B before reaching their conclusion on his age. The questions asked are in line with the types of questions the social workers would be expected to ask. Taking that into account, plus the formal record of the decision on the age assessment, I have no evidence to suggest the social workers reached their view on Mr B’s age solely based on his physical appearance. I therefore have no grounds to criticise the Council.
  6. Ms C says the Council failed to give Mr B enough time to recover from his journey before carrying out the assessment. Ms C suggests the social workers carried out the interview hurriedly to meet the police time requirements under the Police and Criminal Evidence Act. The guidance is clear officers should ensure the child or young person has enough time to recover from their journey and is not tired or hungry before taking part in the age assessment. The guidance does not specify how long this should be and I would not expect it to as each case will be different. In this case though I am satisfied officers clarified with the police Mr B had an opportunity to rest and received food and drink. I am also satisfied the officers that carried out the age assessment clarified that with Mr B during the assessment itself. The records show Mr B said he was rested and had slept well and had lots of tea. In those circumstances I do not criticise the Council for deciding it was appropriate to carry out the age assessment. As I said earlier though, the Council was at fault for carrying out that assessment at the police station.
  7. Ms C says the Council failed to give enough time to carry out the interview and consider the case before reaching a conclusion. Ms C says the officers carrying out the age assessment carried out the interview and reached their conclusion within one hour. Again, the guidance is not clear about how long an interview should take. I am not surprised by that because each case is likely to be different. The guidance does state though where an officer has clear reasons to believe an individual is a child or an adult a decision on age may be made more quickly. So, the fact the officers made the decision within an hour of meeting Mr B does not, in itself, constitute fault. In this case it is clear the officers had decided Mr B was an adult rather than a child after meeting with him and going through a series of questions. It is not my role to comment on the merits of an officer’s decision unless it is reached with fault. I have found no fault here.
  8. Ms C says officers carrying out the age assessment knew several other people had been picked up by the police at the same time and it was likely Mr B had been trafficked. Ms C says the Council should have treated Mr B as a victim of trafficking and followed the NRM process which I refer to in paragraphs 18 and 19. It is clear from the notes from the age assessment officers identified Mr B was likely a victim of human trafficking. Under the procedure the Council should therefore have made a referral to the NRM, although once it decided he was an adult Mr B would have needed to consent. Had the Council done that Mr B may have received some support while his case was considered. Failure to make the referral is fault.
  9. Ms C’s final concern is the Council failed to give Mr B a formal record of the final decision or provide him with details of how to challenge it. It is clear from the documentary records the officers that carried out the age assessment told Mr B of their view they considered him to be an adult and his response to that is recorded. However, there is no evidence social workers provided Mr B with a formal written record of the final decision. Instead they left a copy of that for him at the police station. I consider it would have been better practice for the social worker to hand Mr B a copy of the decision so they could be sure he had received a copy and understood how he could challenge the decision should he wish to do so. That is particularly important in this case because the notes from the interview show the social worker only told Mr B of the decision that he was an adult rather than a child. There is no evidence in the notes taken by the social worker that he was also told how he could challenge the decision. Failure to make that clear to Mr B and ensure he received a copy of the final decision is fault.
  10. So, I have found fault as the Council failed to follow the guidance at various points. If the Council had acted as it should have done it is likely Mr B would have been interviewed at an alternative setting with an appropriate adult present and would have been informed of how he could challenge the decision. I could not, however, speculate about whether the outcome of the age assessment would have been different had the Council followed the right process. It is possible if the Council had properly followed the guidance the outcome would have been the same. I am satisfied though failure to refer to the national referral mechanism meant Mr B possibly missed out on some support as a likely victim of human trafficking. As remedy I recommended the Council apologise to Mr B and pay him £250 to reflect the uncertainty about missing out on potential support. I also recommended the Council send a memo to officers responsible for carrying out age assessments to ensure they know to follow the guidance when carrying out age assessments and, should it be decided it is not appropriate to follow the guidance, that a clear record is made as to the officer’s reasoning for reaching that decision. The Council has agreed to my recommendations.
  11. I understand since this case the Council has completed updated training for all children’s service managers on exploitation and modern-day slavery. I will need the Council to provide details of the training undertaken to confirm it addresses the failure to make the referral in this case and for it to arrange further training for officers carrying out age assessments if the training already carried out does not cover the issues identified in this complaint.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mr B for failing to follow the guidance and for failing to make the NRM referral;
    • pay Mr B £250;
    • send a memo to officers responsible for carrying out age assessments to remind them to follow the guidance and, where it is decided the guidance should not be followed, to keep a record of the reasons why; and
    • provide evidence to the Ombudsman that the Council has undertaken training to address the failure to make an NRM referral in this case.

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Final decision

  1. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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