The Ombudsman's final decision:
Summary: Mr X’s complaint concerns what he says a social worker said to him and how the Council investigated his complaint about this. It is not possible to decide whether the social worker used the words Mr X claimed in one incident, and the comment in the other incident was a matter of professional judgement, so the Council cannot be held at fault.
- The complainant, whom I shall call Mr X, complains through a representative that a social worker spoke to him inappropriately.
- He also complains the Council failed to investigate his complaint properly.
What I have investigated
- I have investigated what the social worker may have said to Mr X.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. She provides a free service, but must use public money carefully. She may decide not to start or continue with an investigation if she believes:
- it is unlikely she would find fault, or
- it is unlikely she could add to any previous investigation by the Council.
(Local Government Act 1974, section 24A(6))
- The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i)
How I considered this complaint
- I spoke to Mr X to gain his consent for the representative to act on his behalf. I read the complaint the representative sent in and the documents he provided. I also read copies of the complaints correspondence between the representative and the Council provided by the Council in response to an earlier request by a colleague.
What I found
- Mr X came to the UK from overseas in 2014 and sought asylum. An age assessment in December 2014 found he was an adult. He was diagnosed with post-traumatic stress disorder in April 2015. Mr X appealed against the age assessment, but this was turned down in July 2015.
The alleged comment in May 2015
- Mr X complains about a comment he alleges a social worker made at a meeting in May 2015. He says the social worker said he should return to his home country.
- The documents Mr X’s representative supplied show the social worker denied saying what Mr X claimed. She said she mentioned a Red Cross scheme intended to put unaccompanied children in touch with their families and the possibility of voluntary return. There were apparently no independent witnesses of the conversation.
- The social worker accepts she mentioned the Red Cross scheme and the possibility of voluntary return. There is thus no doubt she raised the matter. Mr X’s representative says it was not right for the social worker to mention these matters because of his mental health and disputed age. But that was a matter for the social worker’s professional judgement. Finding out Mr X’s wishes would not be fault.
- However, Mr X says the social worker did more than this. There is a significant difference between mentioning options and saying a person should return to his home country. There is no independent account that shows whether either party’s version of the disputed conversation is correct. I cannot therefore reach any view whether the social worker said the words that Mr X claims. I cannot therefore find the Council at fault.
The comment in June 2015
- Mr X also complains the social worker, at another meeting in June 2015, said of Mr X, “When he asks for something, he remembers he is ill.” In his response to the draft decision, Mr X’s representative provided the names of those present at the second meeting: the social worker, a housing manager, Mr X’s key worker and himself.
- Although Mr X’s representative points out that his organisation has a reputation for being strongly independent, he was acting at the meeting, and continues to act, as Mr X’s advocate. Therefore, regardless of his organisation’s status, I cannot regard him as independent of Mr X in this context.
- The second stage investigation report is helpful in this matter. It gives the views of the key worker and the social worker on the incident. The key worker stated, “I was his key worker for several weeks and I felt that he was playing the system. I believe he knows what he is doing.” The social worker said it was not her who had made the comment about Mr X, but the housing manager. The second stage report also gave examples of Mr X’s actions that could be seen as consistent with these views.
- Given the above, I find that, on the balance of probabilities, either the housing officer or the social worker made a comment suggesting Mr X was selective about his illness.
- It is not for me to say whether Mr X was selective about his illness. But I find that this was a matter of the professional judgement of those involved with him, not a matter of fault.
- I do not intend to uphold the complaint as it is not possible to reach a view whether the social worker made the comment alleged in May 2015 and the comments in June 2015 is a matter of professional judgement. I have not investigated the Council’s complaints handling as it would not be possible to reach a sound judgement about the earlier comment.
- Mr X complains the Council, at the second stage of the statutory complaints process for children, wrongly used the same person as an investigating officer and an independent person. He also complains the investigating officer failed to take account of his mental illness, failed to use an interpreter, and failed to allow him to challenge what was written about him. Finally, he complains the Council refused to move his complaint to the third stage of the statutory process.
- I have not investigated these matters as, were I to find fault, there could be no alternative outcome. This is because the most likely remedy would be to ask the Council to carry out a new second stage investigation. But it would not be possible for a new investigation to find out whether the social worker said what Mr X claims in the first matter. Besides, Mr X’s appeal against the age assessment that he is an adult failed. As an adult, he is not entitled to use the statutory complaints process for children. I could not therefore recommend the Council allow him to do so.
- Despite the above, I note the Council used the same person as both investigating officer and independent person. This breaches statutory guidance.
- Although Mr X’s representative takes the view the corporate complaints procedure should be available to Mr X on these matters, I make no recommendation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman