Summary: Miss X complains about how the Council carried out a Child & Family Assessment. She says the Council failed to erase or amend inaccurate information held on its records, which could cause harm to her child in the future. She also says the Council breached its obligations under the Human Rights Act. We have discontinued our investigation. This is because an investigation by the Ombudsman cannot achieve the outcome Miss X wants.

The complaint

1. Miss X complains about how the Council carried out a Child & Family Assessment under Section 17 of the Children Act 1989. Miss X says the Council:
1. recorded observations and information in the assessment which are untrue and failed to correct or erase this data when asked;
2. breached its obligations under the Human Rights Act; and
3. accepted faults in its practices, but has failed to offer an appropriate remedy for the injustice caused to Miss X and her family.
2. Miss X says the Council’s proposed remedies do not address the potential harm that could be caused in future, or reflect the distress she and her family have already experienced.

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The Ombudsman’s role and powers

3. 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 provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

4. 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)
5. We cannot decide if an organisation has breached the Human Rights Act as only the courts can do this. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
6. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.

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How I considered this complaint

7. I considered information from Miss X and discussed the complaint with her.
8. I considered information the Council provided about this complaint.
9. Both Miss X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant guidance, legislation and policies

Section 17 duties

10. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
11. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Section 47 duties

12. Anyone who has concerns about a child’s welfare should make a referral to children’s social care and should do so immediately if there is a concern that the child is suffering significant harm or is likely to do so.
13. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing. The assessment may result in:
• no further action;
• a decision to carry out a more detailed assessment of the child’s needs; or
• a decision to convene a strategy meeting.
14. Section 47 of the Act places a duty on agencies, but mainly the council and the police, to make “such enquiries as they consider necessary to enable them to decide whether to take action to safeguard or promote the welfare of a child in their area”.

Statutory complaints procedure

15. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.

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What I found

Summary of events

16. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every interaction between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
17. Miss X adopted her daughter, Z, in 2012.
18. In August 2021, a social worker from the Council visited Miss X and her family at home. This visit concerned an incident earlier in the month, in which the Police attended the home. Miss X says she discussed with the social worker the broader context of Z’s background and the support being offered to the family. Miss X says the social worker told her there were no concerns about parenting in the home. Miss X says she was told the Council was acting under Section 17 of the Children’s Act 1989, meaning engagement was voluntary. Miss X said she did not want to engage with any support offered in this manner, as it had been unhelpful in the past.
19. Later that day, Z was admitted to hospital, following ingestion of a spiked substance. A few days after this, the Council held a strategy meeting about what had happened, leading it to begin Section 47 enquiries.
20. Later in August 2021, the social worker returned to Miss X’s home to carry out a visit as part of the Section 47 enquiries. Miss X says she provided permission to contact any individual or agency necessary to support the enquiry. Miss X says she stressed the family’s concern was for safety both inside and outside the home.
21. The Council later decided not to proceed with the matter under the Section 47 procedure.
22. In October 2021, Miss X says she was told the Section 47 enquiries had stopped. She says she was told the matter would be managed through a Child & Family Assessment. Miss X says she was never told that engagement with this process was voluntary. The assessment was completed in November 2021, taking account of the events to that point.
23. Miss X made a complaint about the content of the report. The Council responded to Miss X’s complaint under its corporate complaints procedure in early 2022.
24. Miss X was unhappy with the Council’s response and escalated her complaint to stage two of the Council’s complaints procedure in March 2022. Miss X’s letter was expansive, detailing the family’s history and Children’s Services’ involvement. Miss X clarified why she remained unhappy with the Council’s response to her complaint and the outcomes she sought.
25. In May 2022, the Council responded to Miss X’s stage two complaint.
26. In July 2022, Miss X asked for her complaint to be taken to stage three of the Council’s complaints procedure.
27. The Council provided its final response to Miss X in August 2022. In October 2022, Miss X wrote to the Council to explain where she still had concerns.
28. In November 2022, Miss X referred her complaint to the Ombudsman.

Analysis

29. When Miss X asked for her complaint to be considered at stage three of the Council’s complaints procedure, she set out in detail her remaining concerns and the outcomes she was seeking. In its final response, the Council addressed these in the following ways:
1. Citing Section 17 of UK GDPR, Miss X asked the Council to erase specific sentences in the Emotional Warmth section of the Child & Family Assessment. She also asked the Council to completely erase a Child Sexual Exploitation (CSE) Risk Assessment, which Miss X said was wholly inaccurate. The Council agreed to erase the CSE Risk Assessment because it accepted it had not carried this out with Miss X and Z properly, or sought input from partner agencies. The Council therefore agreed the CSE Risk Assessment did not reflect the situation. The Council said it could not agree to erase parts of the Child & Family Assessment, but would ensure to place an updated document on record alongside the assessment. This document would use Miss X’s preferred words, so it could be read alongside the original.
2. Citing Section 16 of UK GDPR, Miss X asked the Council to correct the inaccuracies she had detailed in her complaint. The Council again said it would add a supplementary document to its records, setting out Miss X’s views.
3. Miss X asked the Council to address any outstanding questions and take suitable action, recognise where it got things wrong, and stop “partially upholding” parts of her complaint. The Council said it hoped its recent response had addressed Miss X’s outstanding questions. It said it had been clear where it had agreed with Miss X and changed its views, or where it had decided it had acted correctly. It explained why it “partially upheld” some parts of Miss X’s complaint. Miss X had made 20 separate points of complaint. The Council upheld 10 and partially upheld five.
4. Miss X asked the Council to be clear about which part of the legislation it was acting under in any future interactions it had with the family. She also asked the Council to be clear when engagement was voluntary. The Council said this was a clear expectation for any child, young person or family member engaged with its services, and accepted it had not met this standard in Miss X’s case.
5. Miss X asked the Council how it would ensure that social workers assigned to the family were trauma-informed, with experience in adoption matters and developmental trauma. Miss X also sought assurances the Council would not treat her and her family negatively because of the complaint. The Council said it would allocate appropriately trained staff to undertake complex work, supported with supervision and training. It offered assurances it would not tolerate any form of prejudicial treatment.
6. Miss X asked the Council how it would use the Single Assessment Process outlined in the Children’s Act, to ensure families like hers were subject to only one assessment. She also asked if this assessment would be carried out by knowledgeable social workers experienced in adoption matters. The Council said it was advancing this way of working to provide families with a more joined-up service.
7. Miss X asked the Council to consider remedies and redress for the avoidable distress caused by the Council’s complaint handling. The Council offered a financial payment of £300 in recognition of the avoidable distress caused.
30. Miss X remained dissatisfied, telling us the Council’s proposal to add a supplementary document would not address her main concern, which was the potential impact on Z were she to read the original assessment. She sought the deletion and full correction of the relevant records.
31. She also said the Council’s decision to keep these records, against her wishes as a parent, was a breach of Article 8 of the Human Rights Act. Article 8 sets out the right to respect for a private and family life. She was dissatisfied with the Council’s assertion it had not breached the Human Rights Act in its actions and was seeking a finding on this.
32. I have reviewed the evidence I have about Miss X’s complaint. Having done so, I do not consider an investigation by the Ombudsman could provide the outcome Miss X is seeking on the substantive matters in her complaint.
33. The Ombudsman’s Guidance on Remedies sets out possible recommendations where an investigation finds fault in complaints about Child Protection. We may recommend the Council places a note on its files listing its errors, or making clear the complainant’s dissent where records are disputed. We may also recommend service improvements to address potential faults in practice. This is what the Council has already proposed to do. I recognise Miss X says this is not sufficient in this case, but the Ombudsman could not achieve more than this for Miss X if we were to investigate and find the Council had acted with fault causing injustice.
34. The Ombudsman cannot decide whether information the Council holds on its records should be erased or amended in line with UK GDPR. The Information Commissioner’s Office (ICO) is better placed to consider, in a timelier fashion, whether the Council should agree to Miss X’s request to erase or amend the relevant records.
35. As outlined in paragraph 5, we cannot decide if an organisation has breached the Human Rights Act. We can only consider whether an organisation has had regard for an individual’s rights in its decision-making. We cannot therefore provide Miss X with the determination she is seeking. Based on the evidence I have seen, it is unlikely we would find the Council at fault for failing to have regard for its human rights duties in its approach.
36. We might ask the Council to investigate or consider the matter again, if we had cause to believe the Council had failed to investigate properly. However, we could not recommend the Council delete or amend existing records as part of this process, as Miss X is seeking. Further prolonged investigation by the Ombudsman would therefore be disproportionate to the substantive outcome sought.
37. I have therefore ended my investigation on the grounds that any further investigation by the Ombudsman could not achieve Miss X’s desired outcome.

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Final decision

38. I have ended my investigation. This is because I cannot achieve a worthwhile outcome from further investigation, as I am unlikely to be able to achieve the remedy Miss X wants.

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Investigator's decision on behalf of the Ombudsman