Summary: Mr X complained the Council’s investigation of a complaint he made through the statutory children’s complaint process, was flawed at both stage two and stage three. The Council was at fault as the statutory complaint procedure was flawed. The Council will apologise to Mr X for the avoidable frustration and uncertainty he was caused and conduct a new investigation of his complaint.

The complaint

1. Mr X complained the Council’s investigation of a complaint he made through the statutory children’s complaint process about its actions towards him, and record keeping about him, was flawed at both stage two and stage three, and it had not completed the recommendations to amend its records. Specifically Mr X complained:
• The Council failed to provide the stage two investigation access to the Council’s records.
• The stage three panel changed findings that had been previously upheld and did not consider the recommendation made by the stage two investigation.
• Neither the stage two investigation nor the stage three panel considered a recording of a meeting the Council had considered at stage one of the complaint process, which was integral to Mr X’s complaint.
2. Mr X said as a result the findings of the children’s statutory complaint process were flawed and the Council holds inaccurate records about him which has caused him frustration and distress. Mr X wanted the Council to properly consider his complaint and improve its service.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation and guidance

Statutory complaint procedure

8. 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. We also published practitioner guidance on the procedures, setting out our expectations.
9. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
10. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
11. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
12. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
13. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
14. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

Early help

15. Working Together to Safeguard Children 2023 describes ‘Early Help’ as a system of support designed to improve a family’s resilience and circumstance, or to prevent problems escalating to the point the family requires statutory intervention from children’s services. Some early help services are coordinated and provided by a council such as parenting support or housing or employment services. Early help is a voluntary approach and requires the family or individual’s consent.

Data protection

16. The information Commissioner’s Office provides advice and guidance on how organisations should and should not process data it holds about people under the General Data Protection Regulation (GDPR). GDPR only applies to living people’s personal data. It sets out the things an organisation should consider before it processes personal data. There are lawful bases for processing data but they only apply if it is necessary to process the data, if the objective can be achieved without processing the personal data the lawful basis would not apply. The lawful basis include:
• that the person has given consent for their information to be processed for a specific purpose;
• the processing is necessary for the organisation to comply with the law; and
• the processing is necessary for the organisation to perform a task in the public interest or for its official functions, and the task or function has a clear basis in law.

What happened

17. This section sets out the key events in this case and is not intended to be a detailed chronology.

Background information

18. Mr X has a child, Y. Mr X and Y’s mother (Mr X’s ex-partner) had a court ordered child arrangement order that had been in place for some time setting out where and when Y should spend time with each parent. Mr X raised some safeguarding concerns to the Council about Y’s care. At the same time a Council early help officer (Officer 1) contacted Mr X to discuss the contact arrangements.
19. Mr X met with Officer 1 in July 2023 on the Officer’s request and discussed the court order. Mr X recorded the audio of the meeting. Officer 1 was not aware that the meeting was being recorded. Mr X later made a subject access request to the Council and received redacted social care records which referred to Mr X’s conduct during the meeting with Officer 1. Mr X did not ask for, or receive, the early help records as he was unaware they were different to social care records.
20. In October 2023 Mr X complained to the Council about Officer 1’s conduct during the meeting in July 2023 and that the Council record of the meeting was falsified and incorrect. Mr X explained he had recorded the meeting during which Officer 1’s conduct was inappropriate and they had pressurised him to change contact arrangements in contravention of a child arrangement order. Mr X complained Officer 1 failed to act on safeguarding concerns he raised at the meeting.
21. Mr X met with the Council to discuss the complaint. The Council officer investigating the complaint listened to part of the recording. The Council provided a response to Mr X’s complaint at stage one of the statutory complaint procedure. It said it did not agree Officer 1’s conduct was inappropriate. It agreed the case records did not clearly show what was Officer 1’s opinion of Mr X and what matters were issues reported by Mr X’s ex-partner. It stated it could ask for the records to be amended.
22. Mr X asked the Council to consider the matter further at the end of November because it had not addressed all the points of his complaint.
23. The Council appointed an Investigating Officer (IO) and an Independent Person (IP) in January 2024. They met with Mr X and discussed the complaint. The IO set out the statement of complaint in mid-January 2024. There were 21 points of complaint broadly split into complaints relating to Officer 1’s conduct during the meeting with Mr X, the Council’s related case records being inaccurate, incomplete and not based on evidence, the Council failing to take action about safeguarding matters and the Council’s stage one response being insufficient.
24. During their investigation the IO requested access to the Council’s records twice in January and twice in February. The Council provided one specific redacted case record from the early help records. The IO and IP interviewed Mr X and relevant early help and social care officers, including Officer 1.
25. Mr X provided the IO with a copy of the child arrangement order and redacted social care records he had received as a result of a subject access request to the Council. The Council later sent the same redacted records to the IO. Mr X also told the IO and IP that he had an audio recording of the meeting between himself and Officer 1 in July 2023, about which many of his complaints related.
26. The IO asked Officer 1 if they could listen to the audio recording. Officer 1 did not consent. The IO and IP agreed that as the recording was made without the knowledge or consent of Officer 1, they could not listen to the recording.
27. The IO completed their investigation at the end of February 2024 and provided a report to the Council. Overall the stage two investigation:
• upheld seven elements of complaint;
• partially upheld four elements of complaint;
• did not uphold seven elements of complaint;
• did not make a finding on three elements of complaint.
28. Two of the complaints with no finding related to Officer 1’s conduct during the meeting that Mr X had recorded. The IO commented about the lack of access to early help records making findings difficult in relation to three partially upheld complaints. The IO made some recommendations to remedy the injustice caused to Mr X and to improve the Council’s service.
29. The IP commented on the lack of records provided by the Council but otherwise agreed with the investigation, findings and outcomes.
30. The Council wrote to Mr X six weeks later and said it agreed with the IO’s findings and recommendations.
31. Mr X asked the Council to consider his complaint at stage three of the statutory complaint process at the end of April 2024. He said the Council had not dealt with his complaint within the statutory timescales and the IO had not been provided case records and so he could not be confident a thorough investigation had been conducted. Mr X asked if the stage three panel would consider the audio recording of the meeting as it would mean three elements of complaint that were either not upheld or where no finding could be made would be proven and upheld.
32. The stage three panel was help at the end of September. The panel heard the IO and IP largely relied on redacted social care records provided by Mr X as the Council did not respond to the IO’s requests for access to the records. The IO told the panel they felt they had enough information from the redacted records to support conversations with the Council officers they interviewed.
33. Mr X said he was unhappy the IO had not listened to the recording of the meeting and if they had the outcomes would be different. The IO told the panel Officer 1 did not consent and so they did not listen to it. The Council said it had no policy but its general position was not to listen to covert recordings.
34. The stage three panel issued its report to the Council in October. The panel commented that it had, “significant concern that the Stage 2 investigation was undertaken without the investigating team receiving un-redacted Social Work and Early Help records from [the Council]. During deliberations, Panel considered recommending that a new Stage 2 investigation should be undertaken with consideration of these records. In the end, panel decided against recommending this course of action because it would lead to delay and panel was not confident that it would enhance learning. In addition, the panel meeting had been informed that [Officer 1]…will not be returning to work. Therefore, panel think it highly unlikely that [they] would be able to contribute to another investigation.”.
35. The panel also commented that a significant factor for the investigation was the decision not to listen to Mr X’s audio recording of the meeting which had been the catalyst for Mr X’s complaint, and the Council did not have a relevant policy on the matter. On the related points of Mr X’s complaint, which the stage two could not make a finding on, the panel commented there was no new information and so it agreed it could not make a finding. It did not seek to listen to the recording.
36. The stage three panel:
• changed one upheld and one partially upheld complaint to not upheld;
• changed one complaint with no finding to partially upheld;
• changed one partially upheld complaint to upheld;
• changed one not upheld complaint to no finding;
• did not consider six elements of complaint;
• agreed with the stage two investigation outcome on ten complaints; and
• made some further recommendations to the Council about the actions it should take following the complaint.
37. The Council wrote to Mr X in mid-October and said it agreed with the panel’s findings and set out how it had and would complete the recommendations made by the panel.
38. Dissatisified with the Council’s response and handling of his complaint, Mr X complained to us.

Other relevant information

39. Mr X stated the consideration of a new stage two investigation was not discussed with him and he would have agreed to a new investigation; despite the delay this would have caused.
40. The Council stated the IO did not request access to the unredacted records and so it did not consider if it should or should not provide the unredacted records. However, if it had, it would have considered the request in line with the principles of the GDPR.
41. The Council said it had not provided the audio recording as evidence to the IO as it did not have Officer 1’s consent to do so and it treated the recording in line with data protection principles. It said its corporate leadership team had committed to developing operational guidance for frontline staff regarding covert recordings which would provide clear procedures and expectations to ensure consistent and transparent practice.
42. The Council told me Officer 1 died before the stage three panel hearing.

My findings

43. The Council considered the matter through the statutory complaint procedure. The stage three panel’s purpose is to consider the adequacy of the stage two investigation.

Case records

44. The stage three panel considered the stage two investigation was flawed as it was not provided with, and so could not consider, all the early help or unredacted social care records. The Council states it did not receive a request for unredacted records and so did not consider if it should or should not provide them. However, the records show the IO requested the records more than once. That was fault and meant that the stage two investigation was flawed.
45. The stage three panel considered if it should recommend a new stage two investigation on that basis. It decided not to as it would cause delay and there was no further learning to achieve. It did not consider if the case records may change the outcome of the complaints. The panel did not ask to see the case records itself to resolve the outstanding complaints or ask if Mr X was concerned by additional delay. It could not decide if there was further learning without first knowing what the case records contained. That was fault and meant the stage three consideration was flawed. Although Officer 1 could not participate in a further investigation, the notes and record of their previous interviews would be available.

Covert recording

46. Mr X had recorded a meeting with Officer 1 without their knowledge or consent. Officer 1 was acting in their role as a Council Officer during that meeting. It is unclear what personal data of Officer 1 the recording contained, however the Council referred to data protection principles in its consideration of the recording.
47. The Council listened to parts of the audio recording at stage one. The Council did not provide it as evidence for the stage two investigation, and the IO and IP did not listen to Mr X’s recording, as Officer 1 did not consent. There is no evidence the Council, the IO or the IP considered if there were any lawful basis (paragraph 16) on which they could listen to the recording. That was fault and means the stage two investigation was flawed.
48. The stage three panel noted this was a significant point in the investigation but did not consider if it should listen to the recording in order to find a resolution to those points of complaint. At that point Officer 1 had died and so the issue of consent under GDPR no longer applied. However, it is not clear the Council made the panel aware of that at the time. Either way, the failure of the Panel to consider if there was a lawful basis to listen to the recording was fault and meant that the stage three panel consideration was flawed.

The investigation’s findings and recommendations

49. As the stage two and stage three considerations of Mr X’s complaint were flawed (as set out in paragraphs 44 - 48), its findings cannot be relied on. I have recommended the Council hold a new stage two investigation of Mr X’s complaint below. Because I have recommended a new investigation I have not investigated the recommendations made during this statutory complaint consideration of Mr X’s complaint, as there is no worthwhile outcome achievable. Mr X can raise his desired outcomes during the new investigation.

Delay in the process

50. The statutory guidance sets out the stage two investigation should take 65 days as a maximum from the point a statement of complaint is agreed. The Council took 86 days. At stage three the Council should take 50 days from the point of request to providing its final response. The Council took 162 days. The Council delayed completing the statutory complaints procedure by 133 days altogether which was fault.

Injustice

51. All of the faults identified above caused Mr X avoidable distress and frustration, and have caused him uncertainty about what the outcome of the children’s statutory complaint procedure would have been had the Council acted without fault.

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Action

52. Within one month of this decision the Council will:
• Write to Mr X and apologise for the injustice caused to him by the faults identified above and pay him £250 to recognise the same. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
• Start a new investigation of Mr X’s complaint from stage two of the children’s statutory complaint procedure. The Council will ensure it properly considers and accurately records its considerations under GDPR, or seeks advice about, providing both the case records and the audio recording of the meeting between Mr X and Officer 1 to the Investigating Officer.
53. Within three months of this decision the Council will provide us with a copy of the operational guidance for frontline staff regarding covert recordings as set out in paragraph 41.
54. The Council will provide us with evidence it has complied with the above actions.

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Decision

55. I found fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman