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West Sussex County Council (21 017 661)

Category : Children's care services > Other

Decision : Not upheld

Decision date : 16 Jun 2022

The Ombudsman's final decision:

Summary: the Ombudsman will not investigate Mr X’s complaint about disclosure of sensitive information now because he can re-submit his complaint to the Council.

The complaint

  1. Mr X is unhappy the Council shared sensitive information with Mr F, the father of his partner’s child. He says Mr F has described him as a paedophile in Court and the Council’s actions have endangered his life.
  2. Mr X complained the Council would not accept his complaint because of ongoing legal proceedings.

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What I have investigated

  1. I have considered the Council’s decision not to accept Mr X’s complaint. I have not considered whether the Council was right to disclose information about Mr X to Mr F. The Council will respond to the complaint first when the time is right.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • any fault has not caused injustice to the person who complained, or
  • any injustice is not significant enough to justify our involvement, or
  • further investigation would not lead to a different outcome, or
  • it would be reasonable for the person to ask for an organisation review or appeal. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I have considered:
    • information provided by Mr X; and
    • information provided by the Council.
  2. I invited Mr X and the Council to comment on my draft decision.

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What I found

  1. Mr X has a partner, Ms M. Ms M, has a young child, C.
  2. Ms M and the child’s father, Mr F, were engaged in private family proceedings concerning custody of C.
  3. The Council was involved for two reasons:
    • first, the Council was concerned for C’s welfare. The Council was concerned C had been exposed to Mr X’s aggressive behaviour. It was following child protection procedures.
    • second, the Council had been ordered by the Court to prepare a welfare report for Ms M and Mr F’s custody proceedings.
  4. Mr X was involved with the Police following an allegation he sexually assaulted a child. He is unhappy the Council shared information with Mr F about his involvement with the Police. He does not believe Mr F was entitled to know. He says the Council’s actions have endangered his life. He says Mr F used the information in private family proceedings and described him as a paedophile to the Judge. Mr X complained to the Council.
  5. The Council declined to investigate Mr X’s complaint as it believed to do so could prove prejudicial to Ms M and Mr F’s ongoing court proceedings. The Council based its decision on government guidance about the statutory children’s complaints process.
  6. The Council invited Mr X to re-submit his complaint once the proceedings had concluded.
  7. Mr X was unhappy with the Council’s response and complained to the Ombudsman. The complaint was allocated to me for consideration.
  8. Mr X tells me that Ms M and Mr F’s private family proceedings have now concluded.

Consideration

  1. The Council has not refused to consider Mr X’s complaint; it has said it does not believe it would be appropriate to do so while Ms M and Mr F’s private family proceedings are ongoing.
  2. The Council based its decision on government guidance about the statutory children’s complaints process. This is a formal procedure, set out in law, which councils must follow for certain types of complaint.
  3. Mr X’s complaint may not necessarily be eligible for the statutory children’s complaints procedure.
  4. Eligible complaints are defined in Regulations and do not include complaints about child protection investigations or court welfare reports. This does not mean the Council cannot follow the statutory complaints procedure, only that it is not obliged to do so. Ultimately it is for the Council to decide which procedure is appropriate.
  5. The Council quoted the government guidance on the statutory complaints procedure which says the Council may decide not to consider complaints if it believes to do so would prejudice “court proceedings”. If the Council decides not to consider a complaint, the guidance says it must write to explain its decision. The complainant can re-submit their complaint within 12 months of the conclusion of the court proceedings.
  6. The Council followed the guidance faithfully and to the letter.
  7. However, there is a discrepancy between the guidance and the Regulations to which the guidance refers. The regulations are more specific. Whereas the guidance refers to “court proceedings”, the Regulations specify “criminal proceedings” and any proceedings the complainant has stated he is taking or intends to take against the Council. (Regulation 8 of the Children Act 1989 Representations Procedure (England) Regulations 2006)
  8. At the end of his complaint to the Council, Mr X wrote “I am taking legal action and I expect this to be taken very seriously.” This appears to have been a threat rather than formal notification, but it has the potential to muddy the waters.
  9. It does not appear Mr X is taking or intending to take proceedings against the Council, and there are no criminal proceedings, so it is unlikely Regulation 8 applies to Mr X’s complaint.
  10. Ultimately it is for the Council to interpret the guidance and Regulations. In similar cases where there is a discrepancy between government guidance and the regulations on which the guidance is based, the Courts have preferred the regulations.
  11. In any event, all of these considerations are now academic since Mr X tells me that Ms M and Mr F’s private family proceedings concerning custody of C have concluded. Mr F can now follow the Council’s original advice and re-submit his complaint. If he remains dissatisfied once the Council has completed the complaints process, he can complain to the Ombudsman again.

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Final decision

  1. I have discontinued my investigation. There is nothing to be gained by further consideration: Mr X can re-submit his complaint to the Council now Ms M and Mr F’s proceedings have concluded.

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Investigator's decision on behalf of the Ombudsman

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