• The complaint
• What I have investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision
• Parts of the complaint that I did not investigate

The Ombudsman's final decision:

Summary: Mr X complained about abuse suffered while in care and the Council’s failure to act in his best interests during that time. Mr X also complained about the way the Council responded to his complaint. As a result, Mr X feels as though he is being blamed for the issues he experienced and the Council has failed to listen to him. We have not found fault with the way the Council reached its decision not to investigate Mr X’s complaint or responded to his questions. We will not investigate the substantive complaint of abuse due to the time passed.

The complaint

1. Mr X complains about the historic abuse he suffered while in care. Mr X feels the Council failed to act in his best interests and is unhappy with its refusal to look into this.
2. As a result of the way it responded to him, Mr X feels the Council is blaming him for what happened whilst he was in care.

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What I have investigated

3. I have investigated whether the Council followed a proper decision-making process when deciding not to investigate Mr X’s complaint. I have also investigated whether there is any fault in the way the Council responded to Mr X’s questions.
4. I have not investigated the allegations of abuse made by Mr X. I have given reasons for this at the end of this decision.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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

9. I spoke to Mr X’s representative about his complaint and considered the information they have provided.
10. I asked the Council for the information I needed to consider Mr X’s complaint and I reviewed all the information it provided. This included a copy of the Council’s care records for Mr X.
11. Mr X and the Council had an opportunity to respond to a draft decision before I made my final decision. Neither party provided any information that change my view of this complaint.

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What I found

What happened

12. Mr X entered into the Council’s care in the 1960s and remained in care until the 1980s.
13. During this period, Mr X spent time with several different foster carers and in several different school settings. Placing Mr X with his father and other relatives was also considered and he had different social workers throughout that time.
14. In 2019 the Multi-Agency Safeguarding Hub (MASH) received a report of sexual and physical abuse regarding two social workers dating back to the 1980s. The MASH officer referred this to the Local Authority Designated Officer (LADO) and the police representatives in MASH. At this time, the LADO was unable to find records relating to the alleged perpetrators.
15. In October 2020 the police contacted the Council to request information about the individuals named in 2019. The Council’s Human Resources (HR) was unable to locate any personnel records at that time and the LADO confirmed to the police that they held no records for the named individuals or children’s homes.
16. Later in 2020, Mr X accessed his care record through a Subject Access Request. He then submitted a complaint to the Council in March 2021 about the abuse he suffered while in its care, regarding the same two individuals.
17. The Council responded to Mr X’s complaint the same day to explain it did not usually investigate complaints about events that took place more than a year ago. The Council explained that, due to the passage of time, it may not be able to conduct a full and fair investigation but would attempt to answer Mr X’s questions informally.
18. The Council reviewed Mr X’s care records and wrote to him on 15 June 2021. The Council explained it was unable to find any records of abuse but tried to give answers to the other questions Mr X raised, based on the available records.
19. Mr X was unhappy with the Council’s response as he felt it placed a lot of blame on him and failed to properly answer his questions.
20. Mr X brought his complaint to the Ombudsman in June 2021.
21. I spoke to Mr X’s representative about his complaint and I wrote to the Council asking for information to help me investigate.
22. The Council responded to explain it did not feel able to conduct a fair and full investigation as the events complained about took place more than 35 years ago. The Council explained the information available from the time Mr X was in care is very limited and it has been unable to find any reference to abuse in Mr X’s care notes.
23. During its investigation, the Council positively identified one of the alleged offenders through its HR records. The records show this individual has been dead for a number of years now.
24. The Council has tried to identify the second individual but they no longer hold HR records for them. The Council explained it has searched its HR records based on the limited information available, and liaised with the police to try and get a positive identification but this has not been possible.
25. The Council confirmed they have received no other allegations or similar complaints about those Mr X has named, other than those mentioned above.

Analysis

26. We do not usually investigate complaints that are raised more than 12 months after the complainant ought to have been aware they had reason to complain. We have the power to exercise discretion and investigate late complaints where it may not have been reasonable for the complainant to bring the complaint to us sooner. However, with historical complaints we would need to be confident there is a realistic prospect of reaching a sound, fair, and meaningful decision.
27. I will not investigate Mr X’s substantive complaint of abuse, for the reasons explained below. However, I am able to reach findings on his complaints that the Council refused to investigate and its response to him.
28. We cannot criticise decisions that are taken without fault. When the Council received Mr X’s allegations it consulted with the relevant parties – the LADO, the MASH, the police, and its own HR – to see if it could conduct a full investigation. The Council also reviewed Mr X’s care notes to see if there was enough evidence for it to be able to make findings on his allegations.
29. Mr X has pointed out it is not likely his social workers would have recorded abuse in his care notes and the Council has agreed with this point. However, the care notes are the only evidence, aside from Mr X’s testimony, that the Council has available to it.
30. Based on the information available, the Council decided it could not conduct a fair and meaningful investigation into Mr X’s complaint. The decision not to investigate Mr X’s complaint is one the Council was entitled to make. I therefore do not find fault.
31. Whilst it decided it could not investigate Mr X’s complaint, the Council did try to answer some of the questions he had about his time in care. To do this, the Council relied on the information contained in the care notes. As there was no other information available, I do not think there is fault in the Council’s approach here.
32. Mr X says the Council has ignored his testimony and inaccurately portrayed events whilst putting blame on him. The Council has said it was not giving any judgment on Mr X’s situation, but rather quoted from the care notes it had.
33. Whilst the notes are at odds with Mr X’s recollections and potentially inaccurate, the Council had no other evidence to use in its response. As the care notes were the only information available to the Council, I would not say it was at fault for using these to try and construct a response to Mr X’s questions.

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Final decision

34. I do not find fault with the way the Council has decided whether to investigate Mr X’s complaint. This is because it seems to have followed a proper decision-making process.
35. I also do not find fault with the way the Council responded to Mr X’s questions about his time in care. This is because the Council provided answers based on the only documentary evidence it held.

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Parts of the complaint that I did not investigate

36. I did not investigate the allegations of abuse made by Mr X or the concerns he has about safeguarding whilst he was in care. This is because the events took place more than 12 months ago and there is not enough evidence to reach a sound, fair, and meaningful decision.
37. The events Mr X is complaining about took place more than 35 years ago. It is generally accepted that children who suffer abuse will not necessarily know they can raise a complaint until they are older. However, before exercising discretion to investigate we need to be confident the available evidence is reliable and enough to provide a full picture.
38. The only evidence the Council can provide for Mr X’s complaint is the care notes from the time. There is a direct conflict between Mr X’s recollections and the written records. I can reach findings on the balance of probabilities, but I am unable to say whether the notes are accurate or not, even on balance.
39. Due to the length of time that has passed since the events Mr X has complained about and the lack of evidence available, I do not think we could reach a sound, fair, and meaningful decision.

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Investigator's decision on behalf of the Ombudsman

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