Summary: Miss X complains about the Council’s conduct and treatment of her in relation to her children. She says Council officers were at fault in their preparation of a welfare report of her children which was ordered by the Family Court. Miss X also complains the Council failed to provide evidence of domestic abuse which would have supported her application for legal aid. We found the Council failed to properly consider and respond to Miss X’s request for evidence of domestic abuse. This caused Miss X an injustice and so we have recommended a number of remedies. We cannot investigate the issue of the court ordered reports as we have no jurisdiction to do so as a result of legal proceedings.

The complaint

1. The complainant, who I refer to as Miss X, complains in relation to how she has been treated and her children’s case has been managed by the Council’s Children’s Services team. Specifically, Miss X alleges the following:
1. The Council has given her misleading information and failed to follow up on promises to take action following her complaints.
2. The Council did not complete a welfare report in relation to her children within the time period ordered by the Family Court.
3. The Council’s welfare report contained a number of inaccuracies and misleading statements and that officers were unwelcome, unprofessional and threatening in the report’s preparation.
4. The Council breached data protection legislation by disclosing to her the names of two children involved in separate child protection enquiries.
5. The Council failed to respond to a request for evidence relating to domestic abuse to support her in applying for legal aid.
2. Miss X says she has suffered deep distress and anxiety because of the Council’s failings. She also says the Council prejudiced her position in legal proceedings as she was unable to obtain a lawyer due to it not providing evidence for her legal aid application. As a desired outcome, Miss X wants the Council to accept its failings, review its policies and provide compensation.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended).
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

8. I have reviewed Miss X’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. I invited both Miss X and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

The Children Act 1989

9. Section 17(1) Children Act 1989 imposes a duty on the Council to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
10. There are two different types of court proceedings where a local authority’s Children’s Services team can regularly become involved, these being public law care proceedings and private law ‘child arrangement orders’. In both proceedings, the Court can order the local authority to provide court reports. We often receive complaints which are about the content and/or preparation of those reports.
11. A Section 7 report is often referred to as a ‘welfare report’. These are produced in private law child arrangement proceedings. The Court orders that someone produce a report on the welfare of the child. To do so they have to refer to ‘the welfare checklist’ which is set out in section 1(3) Children Act 1989.
12. A Family Court can order a Council to provide the Section 7 report. Typically, the Court does so when the local authority’s Children’s Services team is already involved in some way with the family. These reports are an essential tool for the Court to use in its decision about child arrangements (formally called residence and contact orders). The Court sees the report as ‘independent’ and they are central to its decision making process about the arrangements of a child.
13. As a Court has ordered the Section 7 report, its preparation and content are outside our jurisdiction under schedule 5(1) of the Local Government Act 1974.

Applying for legal aid

14. Legal aid is regulated by the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098) Schedule 1 and can help people meet the costs of legal advice, family mediation and representation in a court or tribunal. Importantly, legal aid is financially means tested and is only available for certain types of areas of law or where a person’s problem is very serious.
15. A person might be able to get legal aid if they have evidence that either they or their children have been victims of domestic abuse or violence and they cannot afford to pay legal costs. There are a number of ways of providing evidence of domestic abuse (e.g. social services, the police, the courts and/or a domestic violence support service etc.). Being a victim of domestic abuse does not guarantee a person will receive legal aid. Fundamentally, the decision will also fall on whether the person can afford legal costs without support.

Chronology of events

16. In early January 2020, Miss X complained to the Council that it had failed to comply with a legal order by the Family Court to complete a Section 7 welfare report in relation to her children.
17. In addition, Miss X complained in relation to the Council officer who was preparing the Section 7 welfare report. She said the Council officer had been threatening towards her and had therefore been reported to the police.
18. In late January 2020, Miss X received a copy of the Council’s Section 7 welfare report. However, she said this contained a number of inaccuracies and misleading information and that a new report would need to be prepared.
19. In April 2020, Miss X agreed to receive a written apology and financial payment to settle her complaint in respect to the Council’s alleged conduct towards her.
20. In mid-December 2020, Miss X made a further complaint relating to a call she received from an officer working within the Council’s Children’s Services. Miss X alleges the Council officer breached data protection legislation by disclosing the names of two children involved in a separate child protection case.
21. In addition, Miss X raised concerns that the Council had not visited her ex partner’s home during the preparation of the Section 7 welfare report to identify whether this was a safe environment for her children.
22. In late December 2020, Miss X requested the Council complete a form which would enable her to make an application for legal aid. The form required confirmation as to whether the Council assessed Miss X as being, or at risk of being, a victim of domestic violence.

My assessment

Section 7 reports

23. As part of the private child arrangement proceedings, the Family Court ordered the preparation of a Section 7 welfare report by the Council. Miss X has since made several complaints in relation to the preparation and content of the Report. As the Family Court ordered the Section 7 welfare report, its preparation and content are outside our jurisdiction under schedule 5(1) of the Local Government Act 1974. This limitation extends to any other documentation or report ordered by the Court, any legal proceedings, or issues materially connected to those proceedings. We have no discretion to investigate in these circumstances.
24. I recognise that Miss X has made several complaints in relation to the Council’s treatment of her during the welfare report process. However, in April 2020, Miss X agreed to resolve these complaints by way of the Council offering an apology and sum of compensation. Miss X says the Council has continued to demonstrate poor conduct towards her and therefore considers she is not bound by the agreed remedy and therefore wishes we investigate the issues. I do not share Miss X’s view who has received the financial benefit of a remedy. The agreement between Miss X and the Council was to remedy the mentioned failings. I will not therefore investigate these issues because I cannot add to the remedy already agreed between Miss X and the Council.
25. Separately, I recognise that Miss X says the Council’s poor conduct towards her is continuing. However, I have not been provided any evidence that additional allegations, post April 2020, have yet completed the Council’s complaints policy and procedure. By law, I must first be satisfied that the Council has been afforded a reasonable opportunity to resolve any complaint. I do not consider this has yet been satisfied and so I will not consider any additional complaint at this stage.

Data protection concerns

26. In cases involving data protection legislation, we normally expect the complainant to complain to the Information Commissioner’s Office (ICO). This is because the ICO is the public body responsible for investigating and regulating data protection matters. Miss X alleges that the Council breached data protection by disclosing the names of two other children subject to child protection enquiries. This is properly a matter which relates to data protection laws and I consider it would be reasonable for Miss X to make a complaint to the ICO in these circumstances. The restriction I describe at Paragraph 6 (above) therefore applies.
27. In addition, the Ombudsman is only required to accept and consider a complaint where the alleged fault had caused a personal and significant injustice. In my view, there is no evidence that Miss X suffered serious loss, harm or distress by reason of any alleged disclosure of this nature. I do not therefore consider Miss X has suffered an injustice in relation to this part of the complaint.

Legal aid application

28. A person might be able to get legal aid if they have evidence that either they or their children have been victims of domestic abuse or violence and you cannot afford to pay legal costs. To apply for legal aid to assist with her legal costs, Miss X wrote to the Council to ask them to complete a form to evidence domestic abuse. The form asked the Council to confirm the following in accordance with the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098) Schedule 1. It says:

“I understand that [Name of applicant] wishes to access legal aid for a family dispute as a victim of domestic violence. For this reason, I have been asked to provide a letter in accordance with regulation 33 and schedule 1 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended). Accordingly, I can confirm that [Name of applicant], a person with whom [Name of perpetrator] is or was in a family relationship with, was assessed as being, or at risk of being, a victim of domestic violence by [Name of perpetrator].”

29. The Council confirmed that at the time the query was made, it neither acknowledged nor responded to Miss X’s request. In my view, this constitutes poor administrative practice on the part of the Council and so I consider it was at fault. In March 2021, the Council later responded to Miss X’s complaint on the subject. It said its position was that the above extract requested the Council’s Children’s Services to name Miss X’s ex-partner as a perpetrator of domestic violence. The Council advised it could not condone the wording of the above extract as this was to be used as evidence of domestic violence.
30. In addition, the Council also told Miss X that the Family Court had scheduled a fact-finding hearing to consider the allegations of domestic violence made. It therefore considered it would be inappropriate to provide the requested confirmation as the issue would be subject to consideration during the course of the legal proceedings.
31. I do not accept the Council’s interpretation of the confirmation that Miss X requested. The extract of text is not limited to seeking confirmation of whether Miss X was a victim of domestic abuse by her ex-partner. The wording would also enable the Council to confirm whether Miss X was assessed as being at risk of domestic violence. It should also be noted that the requested confirmation was to enable Miss X to obtain legal aid to support her in Family Court. The suggestion put forward by the Council that the issue be limited to the Family Court’s jurisdiction is ignorant to the issue that Miss X was seeking financial support to aid her in those proceedings.
32. In my view, the Council has fundamentally misunderstood its role in providing evidence for an application for legal aid involving domestic abuse. I therefore find the Council was at fault for not properly considering Miss X’s request in accordance with its known information. Importantly, I cannot determine whether Miss X would have been eligible for legal aid had the Council provided the sought confirmation. This is because legal aid is financially means tested. That said, I do consider Miss X suffered distress, uncertainty and a fear her position in the legal proceedings would be prejudiced without legal assistance. I consider Miss X has suffered an injustice because of the Council’s procedural failing and so I am recommending a number of remedies.

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Agreed actions

33. To remedy the fault and injustice identified above, the Council will take the following actions within one month of this final decision:
1. Provide Miss X a written apology which acknowledges the fault and injustice identified in this statement.
2. Pay Miss X £350 to acknowledge the distress, uncertainty, and hardship she suffered by reason of the identified failings.
34. In addition, the Council will, within three months of this final decision, produce a written policy document for providing evidence for an application for legal aid in cases involving domestic abuse. The policy document should contain the procedure for acknowledging and responding to requests for evidence (including timetables). It should also outline how a request for evidence will be handled and assessed against the Council’s known and held information.
35. The Council is required to provide evidence to the Ombudsman that it has complied with the above actions within three months of a final decision.

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Final decision

36. The Council was at fault for neither responding to, nor considering, Miss X’s request for evidence which would have supported her legal aid application. This caused Miss X an injustice and so I have recommended a number of remedies.

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Parts of the complaint that I did not investigate

37. I cannot investigate Miss X’s complaint in relation to the preparation and content of court ordered reports. These were ordered by the Court and so we have no jurisdiction to investigate. Moreover, I cannot investigate any matter subject to those legal proceedings, including the alleged conduct of Council officer’s involved in those proceedings.
38. In addition, I will not investigate Miss X’s complaint in relation to a breach of data protection legislation. This is because this matter could reasonably be raised with the ICO. I will also not investigate Miss X’s allegations of fault which were subject to an agreed remedy with the Council.

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Investigator's decision on behalf of the Ombudsman