Summary: Mr X complained about the way the Council’s Local Authority Designated Officer (LADO) determined allegations made about his professional practice. Because Mr X issued legal proceedings, we discontinued our investigation.

The complaint

1. Mr X complains that the Council failed to properly determine allegations made about his practice which were considered by the Local Authority Designated Officer (LADO).
2. Mr X says his employer found he had no case to answer but the LADO outcome was ‘substantiated’. He states the way the matter was considered was flawed, in that it lacked transparency and fairness.
3. The outcome had significant impact to Mr X, personally and professionally.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. The courts have said that where someone has used their right of appeal, or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal or proceedings did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I spoke to Mr X and I considered the information he provided. I asked the Council for information and I considered its response to the complaint.
8. I took account of our jurisdiction to investigate complaints when reaching this decision.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Councils are able to serve us with a notice under Section 32(3) of the Local Government Act if they consider the information they provide to us must remain confidential. When we receive a Section 32(3) notice we cannot share what is subject to the notice with the person affected or any other party. I could not share the Council’s full response to the complaint with Mr X, nor include specific details in my draft decision as a result. I could however, consider the Council’s comments and the information it provided when making my decision.

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What I found

Local Authority Designated Officer (LADO)

11. The LADO is a person responsible for managing and overseeing investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.

Summary of what happened

12. Mr X’s complaint concerns the way the Council dealt with allegations made about his practice as a health professional. This concerned a young person, that he was seeing, as a patient. The allegations were considered through the LADO process.
13. Mr X was concerned the young person would stop speaking to him or anyone else if he made referrals to the Police/social services based on their disclosures. He says the Police agreed to Mr X continuing to see the young person on a confidential basis. This meant he would not disclose what the young person told him. The Council told us it has no record of this meeting and it had not been possible to prove the facts regarding this arrangement. The Police considered there had been a misunderstanding and no such arrangement was reached.
14. A safeguarding alert was raised about Mr X not sharing information at a subsequent meeting about the young person. This resulted in an investigation by Mr X’s employer. The LADO substantiated the allegations following the investigation.
15. Mr X’s employer subsequently arranged a review of its actions by an external party. This review was very critical of the employer’s actions and the LADO process.
16. While we were investigating the matter, Mr X issued protective proceedings in the high court about the same matter.

Our Jurisdiction

17. Mr X explained to us the details of the action he had taken. Having considered what he told us, we decided that we no longer had jurisdiction to investigate Mr X’s complaint. This is because Mr X’s application to the court constitutes resorting to an alternative remedy for the issues he has complained to us about.
18. The law states that we should not normally investigate a complaint when someone could take the matter to court. We have discretion to investigate where it would be unreasonable to expect the person to go to court. However, when someone resorts to an alternative remedy, the Ombudsman can no longer exercise his discretion to investigate.
19. In any event, by taking the action that he has, Mr X has demonstrated that he is willing and capable of pursuing legal action. So, even if it were not the case that Mr X’s actions constituted the use of an alternative remedy, we would exercise discretion to discontinue our investigation. This is because it is reasonable in all the circumstances to expect Mr X to use the alternative remedy he has identified and that is open to him.

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Final decision

20. We have discontinued our investigation into Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman