Summary: Mr X complains the Council gave incorrect information about a safeguarding matter to a voluntary organisation in which he held a senior position. He says this led to his membership being cancelled. I find no fault with the way the Council carried out its role. The voluntary organisation decides whether to use Mr X’s services and whether to make a referral to the DBS if it is concerned about Mr X’s suitability to work with children. These decisions are outside the Ombudsman’s jurisdiction.

The complaint

1. Mr X complains the Council gave incorrect information about a safeguarding matter to a voluntary organisation in which he held a senior position. He says this led to his membership being cancelled. He says he has suffered considerable stress, for which he has required medication, and his reputation has been damaged.

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What I have investigated

2. I have investigated the Council’s handling of the allegations made against Mr X. I have not considered the allegations themselves. This was the job of the Police, the Court, the Council, the organisations for which Mr X volunteered, and the Disclosure and Barring Service (DBS).

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Police, the voluntary organisations Mr X worked for, or the DBS. (Local Government Act 1974, sections 25 and 34A, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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. I have considered:
• information provided by Mr X, including his correspondence with the Council, a transcript of a Crown Court hearing, and information he obtained from other organisations through subject access requests.
• information provided by the Council, including the records kept by the LADO.
6. I invited Mr X and the Council to comment on my draft decision.

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What I found

What happened

7. Mr X was a volunteer who worked with children. He volunteered for two organisations.
8. In 2018, children Mr X worked with alleged he had touched them inappropriately. The organisation responsible made a referral to the Council. Mr X was arrested and subsequently charged.
9. The LADO chaired a strategy discussion and position of trust meeting. Both voluntary organisations suspended Mr X. The Police conducted an investigation.
10. Mr X’s case was scheduled for trial at Crown Court in 2019. However the Crown offered no evidence and Mr X was acquitted.
11. Nevertheless, the Council considered Mr X posed a risk of harm to children and informed both voluntary organisations of its view. Neither organisation has reengaged Mr X, and one has made a referral to the Disclosure and Barring Service (DBS).

People in positions of trust

12. Government guidance sets out how organisations should deal with allegations or concerns about people who work with children. (Working together to safeguard children: a guide to inter-agency working to safeguard and promote the welfare of children, chapter 2)
13. Councils should designate an officer, or team of officers, to be involved in the management and oversight of allegations and concerns. The officer is known as the LADO (or Local Authority Designated Officer).
14. Councils provide advice and guidance to employers and voluntary organisations on how to deal with allegations and concerns. Councils should ensure there are appropriate arrangements in place to liaise effectively with the police and other organisations to monitor the progress of cases and ensure they are dealt with as quickly as possible, consistent with a thorough and fair process.
15. Employers, school governors, trustees and voluntary organisations should have clear policies setting out the process, including timescales, for investigation and what support and advice will be available to individuals against whom allegations have been made.
16. In most circumstances, councils do not investigate the allegations themselves. Councils cannot stop anyone working with children or take disciplinary action against them.
17. The Ombudsman investigates complaints about councils. We cannot investigate complaints about any other organisations involved.

The Disclosure and Barring Service (DBS)

18. Employers or volunteer managers of people working in regulated activity have a legal duty to refer cases to DBS where certain conditions are met. This applies even when a referral has also been made to a local authority safeguarding team.
19. They must make a referral if they withdraw permission for a person to engage in a regulated activity with children and they believe the person’s conduct poses a risk of harm. Failure to make a referral is an offence.
20. They may make a referral even if they do not have enough evidence to stop a person working in a regulated activity. This could be on the advice of the Police or a safeguarding professional.
21. DBS are required by law to consider referrals from any source, including referrals where the legal referral conditions are not met.
22. DBS will evaluate all the evidence to determine whether the person should be barred from working in regulated activity with children and / or vulnerable adults.

Consideration

23. Mr X complains about information the Council gave to a voluntary organisation in which he held a senior position. In particular, he complains the Council told this organisation:
1. his trial collapsed because his barrister had proposed an ‘aggressive’ cross-examination of the witnesses;
2. he was dismissed by the other voluntary organisation for a breach of their safeguarding policies; and
3. that organisation made a referral to the DBS.
24. Mr X says this information is incorrect. He believes it resulted in the organisation cancelling his membership and making a referral to the DBS itself. I will consider each in turn.

The outcome of Mr X’s trial

25. Mr X complains the LADO reported the outcome of his trial to the voluntary organisations in terms which implied ‘the guilty man got away with the crime’. He says reports of his barrister’s plans to ‘aggressively cross-examine’ witnesses are not only incorrect, they show a lack of understanding of the process.
26. Mr X was acquitted of all charges because the Crown presented no evidence at his trial and invited the judge to find him not guilty. The transcript of the ‘ground rules’ hearing records the judge’s concern about the vagueness of the allegations in the indictment. The judge was also concerned about the children’s level of understanding and the implications for their cross-examination.
27. Mr X referred me to the judge’s comments that he ‘left the dock with his good character intact.’ He thinks the Council has unfairly misrepresented the outcome of his trail to the voluntary organisation and is responsible for the organisation cancelling his membership.
28. The Police officer responsible for the investigation, who was present in court, informed the LADO the outcome of the trial two days after the hearing. An email from the Police officer noted the court’s concern about the witnesses’ level of understanding and communication. The Police officer said the judge suggested the trial should not go ahead because the defence could not properly cross-examine the children. The Police officer said this would make it very difficult for the jury to convict and therefore the children would be put through the unnecessary trauma with no prospect of conviction.
29. Mr X obtained notes from the voluntary organisation through a subject access request which record a discussion with the LADO about the outcome of the trial. The notes say the LADO explained Mr X was acquitted because “the defence planned to take an aggressive line of questioning which would have involved the cross-examination of [the children] in court. ... It was not felt to be in the interests of [the children] to go through this.”
30. The note of the conversation with the LADO records three relevant details, namely that Mr X was acquitted, cross-examining the witnesses was problematic, and the trial was not in the children’s interests. It is not possible to tell from the note whether the phrase to which Mr X objects, the ‘aggressive cross-examination’ of the children, was used by the LADO or coined by the voluntary organisation. I note the phrase itself does not occur in any of the LADO’s records.
31. I do not consider the Council misrepresented the outcome of the hearing.
32. I note from the transcript of the hearing that while the judge explained Mr X left the dock with his character intact, he also made it clear there was still a separate decision to be made, to a lower standard of proof, about Mr X’s suitability to work with children.
33. Although I do not accept the LADO reported the outcome of Mr X’s trial to the voluntary organisations in terms which implied ‘the guilty man got away with the crime’, I note the LADO did recommend Mr X was unsuitable to work with children and the voluntary organisation was obliged to make its own decision on this point.
34. The voluntary organisation ultimately decided Mr X was unsuitable to work with children and cancelled his membership. It also made a referral to the DBS. The Ombudsman has no power to consider this organisation’s actions.
35. I will consider the reasons for the Council’s decisions Mr X was unsuitable to work with children below.

Mr X was dismissed by another voluntary organisation for a breach of their safeguarding policy

36. Mr X complained the Council incorrectly reported he had been dismissed by another voluntary organisation for a breach of their safeguarding policy, and the organisation had made a referral to the DBS.
37. The Council decided this amounted to an ‘adverse reference’ and concluded on this basis Mr X was unsuitable to work with children.
38. Mr X says he was not dismissed by the organisation, and the organisation told him it had not made a referral to the DBS. He refutes the suggestion he breached the organisation’s safeguarding policy.
39. The Council maintains the organisation said it would not use Mr X’s services again which it says amounts to the same as being dismissed for safeguarding purposes. Whatever term was used, there was a disagreement between Mr X and the organisation about working practices. Mr X asked to work in a location where he would not be disturbed; the organisation said this was against its safeguarding policy; Mr X justified his request; and they were unable to reach an agreement.
40. Mr X complains the Council misinformed one voluntary organisation about the actions of the other voluntary organisation, and this ultimately led to the cancellation of his membership and a referral to the DBS by the first voluntary organisation.
41. I do not consider the Council was at fault for reporting the fact a voluntary organisation decided to not to use Mr X’s services. In the circumstances in which the Council reported the information, I do not consider it is relevant whether that organisation dismissed Mr X, whether it decided not to use his services, or whether Mr X decided not to volunteer any more.
42. I do not consider it relevant the organisation the Council said had made a referral to the DBS told Mr X this was not the case. Each organisation that engaged Mr X as a volunteer to work in a regulated activity had a duty to refer any concerns to the DBS if they met certain criteria, and the option to refer them even if they did not. Guidance from the DBS makes it clear that the fact there is another organisation which could, or has, made a referral not a relevant consideration.

Conclusion

43. The Council’s role in Mr X’s case was to protect children by providing advice and guidance to the voluntary organisations on how to deal with allegations and concerns. I find no fault with the way the Council carried out its role. I do not consider the Council misrepresented the outcome of his trial or provided incorrect or misleading information about the actions of one of the organisations for which Mr X volunteered.
44. The voluntary organisations themselves decide whether to use Mr X’s services. And the voluntary organisations decide whether to make a referral to the DBS if they are concerned about Mr X’s suitability to work with children. These decisions are outside the Ombudsman’s jurisdiction.

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Final decision

45. I have completed my investigation. I am satisfied with the Council’s actions. I do not uphold Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman