Oxfordshire County Council (18 002 126)

Category : Education > Other

Decision : Upheld

Decision date : 15 Jan 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has not dealt with an allegation against him properly, causing him distress and leaving him unable to work for longer than was necessary. The Council acted properly when it held a multi-agency meeting to consider a child protection referral concerning Mr B and when it considered whether there should be an internal investigation. The Council did not fully follow its own guidance for dealing with allegations against people working with children. This did not cause Mr B any injustice.

The complaint

  1. Mr B complains the Council caused him a very long period of distress and uncertainty where he was unable to work, because it:
    • Did not deal with the initial child protection referral properly by not making any initial enquiries which could have shown it had no merit.
    • Did not pass updates to him through the life of the police investigation.
    • Did not follow statutory guidance or its own policy concerning dealing with allegations against teachers.
    • Failed to provide any information to his employer when it asked them to conduct an internal investigation.

What I have investigated

  1. I have investigated the Council’s actions and involvement in the referral and investigation of the allegation made against Mr B.
  2. I have not investigated any differences between the policies held by other Councils, any alleged faults in the police investigation or the actions of Mr B’s employer, Agency M, for the reasons set out at the end of this draft decision.

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The Ombudsman’s role and powers

  1. If we are satisfied with a council’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)
  1. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police. (Local Government Act 1974, sections 25 and 34A, as amended)
  3. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
  4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

  1. I spoke to Mr B and considered his complaint. I looked at documents the Council sent about its involvement in Mr B’s case. I reviewed the statutory guidance provided by the Government.
  2. Both Mr B and the Council have had an opportunity to make comments on this decision.

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What I found

  1. On a submission of no case to answer at the end of the prosecution case, the trial judge should stop the case and direct an acquittal if there is no evidence the crime alleged against the accused was committed by him. However, if there is some evidence but it is of a tenuous character (e.g. because of inherent weakness or vagueness or because it is inconsistent with other evidence), it is the judge’s duty, on a submission of no case, to stop the case if he comes to the conclusion the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. (R v Galbraith [1981] 1 WLR 1039)
  2. The defendant in respect of whom such a submission has succeeded on one of several counts is to be treated during the rest of the trial as being no longer charged on that countFootnote . (R v Meek (1966) 110 Sol Jo 867, CA; R v Plain [1967] 1 All ER 614, 51 Cr App Rep 91, CA)
  3. A criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. (Criminal Procedure and Investigations Act 1996 Code of Practice March 2015)
  4. It is the duty of the prosecutor … to disclose material which is in his possession and which might reasonably be considered capable of undermining the case against the accused, or of assisting the case for the accused. (Criminal Procedure and Investigations Act 1996 Code of Practice March 2015)
  5. The prosecutor is the authority responsible for the conduct, on behalf of the Crown, of criminal proceedings resulting from a specific criminal investigation. (Criminal Procedure and Investigations Act 1996 Code of Practice March 2015)

Statutory guidance and Council policy

  1. The Department for Education has published statutory guidance for schools and colleges which covers allegations of abuse made against teachers and other staff. (Keeping children safe in education - Statutory guidance for schools and colleges September 2016)
  2. The Council has incorporated the statutory guidance into its own policy. (Allegations of abuse made against staff and volunteers working with children’ {Working with children} April 2017)
  3. On receiving a referral about an allegation of abuse, the employer should hold an initial meeting with the LADO (Local Authority Designated Officer) to consider the nature, content and context of the allegation and agree a course of action. (Para 7 Working with children April 2017)
  4. The case manager should inform the accused person about the allegation as soon as possible after consulting the designated officer. It is extremely important the case manager provides them with as much information as possible at that time. However, where a strategy discussion is needed, or police or children’s social care services need to be involved, the case manager should not do that until those agencies have been consulted, and have agreed what information can be disclosed to the accused. (Para 10 Working with children April 2017)
  5. In some cases, further enquiries will be needed to enable a decision about how to proceed. If so, the designated officer(s) should discuss with the case manager how and by whom the investigation will be undertaken. (Para 13 Working with children April 2017)
  6. Employers must consider carefully whether the circumstances of a case warrant a person being suspended from contact with children at the school or college or whether alternative arrangements can be put in place until the allegation or concern is resolved. The rationale and justification for suspension should be recorded by the case manager and LADO. (Para 36-42 Working with children April 2017)
  7. It is expected that 80 per cent of cases should be resolved within one month, 90 per cent within three months, and all but the most exceptional cases should be completed within 12 months. (Para 31 Working with children April 2017)
  8. The designated officer(s) has overall responsibility for oversight of the procedures for dealing with allegations, for resolving any inter-agency issues, and for liaison with the Local Safeguarding Children Board (LSCB) on the subject. The designated officer(s) will provide advice and guidance to the case manager, in addition to liaising with the police and other agencies, and monitoring the progress of cases to ensure they are dealt with as quickly as possible consistent with a thorough and fair process. Reviews should be conducted at fortnightly or monthly intervals. (Para 33 Working with children April 2017)
  9. Police forces should also identify officers who will be responsible for sharing information on completion of the investigation or any prosecution. (Para 34 Working with children April 2017)
  10. If the strategy discussion or initial assessment decides that a police investigation is required, the police should also set a target date for reviewing the progress of the investigation and consulting the Crown Prosecution Service (CPS) about whether to: charge the individual; continue to investigate; or close the investigation. Wherever possible, that review should take place no later than four weeks after the initial evaluation. Dates for subsequent reviews, ideally at fortnightly intervals, should be set at the meeting if the investigation continues. (Para 35 Working with children April 2017)
  11. Where it has been deemed appropriate to suspend the person, written confirmation should be dispatched within one working day, giving as much detail as appropriate for the reasons for the suspension. (Para 42 Working with children April 2017)
  12. Where the police are involved, wherever possible the employer should ask the police to obtain consent from the individuals involved to share their statements and evidence for use in the employer disciplinary process. This should be done as their investigation proceeds and will enable the police to share relevant information without delay at the conclusion of their investigation or any court case. (Para 45 Working with children April 2017)
  13. The designated officer(s) should discuss with the case manager whether any further action, including disciplinary action, is appropriate and, if so, how to proceed. The information provided by the police and/or children’s social care services should inform that decision. (Para 47 Working with children April 2017)

What happened

  1. An allegation of abuse was made against Mr B on 2 May 2017.
  2. The Council arranged a multi-agency strategy meeting which was held on 3 May 2017. The Council’s designated officer, the police and Mr B’s employer, Agency M, were all represented. Mr B’s employment involved contact with children and young people.
  3. A decision was taken at the strategy meeting that the police should investigate the allegation and to suspend Mr B. Mr B was advised of his suspension on 3 May 2017 but was not informed about the specific details of the allegation. Mr B’s employer, Agency M, was requested not to disclose any details in case it jeopardised the police investigation.
  4. Mr B was arrested by police on 11 May 2017. He was interviewed and released. Agency M then met with Mr B on 17 May 2017.
  5. On 10 June 2017, the professional body decided that Mr B would not be subject to an interim ban on his work.
  6. Mr B was advised that he was being charged with an offence on 14 September 2017. A court date was set for December 2017. The outcome of Mr B’s court case was a verdict of not guilty following a submission to the court by Mr B’s defence team that there was no case to answer.
  7. Mr B tried to contact the Council and his employer between 21 December 2017 and 5 January 2018.
  8. The police sent an update to the Council on 22 December 2017 containing details of the outcome of the criminal case.
  9. The designated officer spoke to Agency M on 4 January and asked them to conduct an internal investigation as Mr B’s employer. Mr B sent several emails over 4 and 5 January 2018, which were all copied in to Agency M and the designated officer.
  10. The designated officer attempted to arrange a strategy review meeting between the Council, the police and Agency M. This did not take place because the police did not want to attend it. The police advised the Council that Agency M could request information through its legal department.
  11. Mr B supplied his employer with relevant evidence including CCTV footage. Agency M conducted its internal investigation which was completed on 19 February 2018. Agency M stated in its final report it declined to request information from the police because it already had sufficient evidence to be able to conduct the internal investigation and make a decision. The internal investigation found the allegation against Mr B to be ‘false’.
  12. The professional body concluded in July 2018 that Mr B had done nothing wrong.

My findings

The initial meeting

  1. The Council acted in accordance with the ‘Working with Children’ policy para 7 in holding a multi-agency strategy meeting about an allegation about Mr B on 3 May 2017.
  2. ‘Working with Children’ policy para 13 outlines that where further enquiries are needed the case manager and designated officer should discuss how the investigation will be undertaken. The minutes of the meeting clearly show that it was agreed the police would undertake a criminal investigation. In Mr B’s case, the CCTV evidence was external to the school and there was the possibility of forensic evidence being available, neither of which the Council or Mr B’s employers had the authority to obtain. The decision to agree a police criminal investigation was reasonable. I do not find this to be fault by the Council.

The decision to suspend Mr B

  1. Mr B was suspended following consideration of his position at the strategy meeting on 3 May 2017. The minutes of this meeting record that it is considered the only option. This implies that other options were under consideration, but the minutes do not record them. There is no other record made in the casefile by the Council of the rationale or justification for Mr B’s suspension. Mr B says he has been left uncertain that other options, which may not have left him unable to work, have been properly considered and believes he has been considered as guilty from the start. I find this to be fault by the Council as the policy says the rationale and justification for suspension should be documented. Given the nature of the allegation, it is unlikely that any other option would have been appropriate or justifiable and so there was no injustice caused to Mr B.
  2. Following the decision, the notification of suspension of Mr B was a personnel matter for his employer, Agency M. Mr B was advised about his suspension on 3 May 2017 by Agency M, who were constrained from telling Mr B the full details of the allegation because of an agreement not to as part of the strategy meeting.
  3. Mr B says that he never received written confirmation of his suspension within one day and only later became aware of the full allegations when he was interviewed by the police on 11 May 2017. As Mr B was employed by Agency M the responsibility for this was Agency M’s, not the Council’s. I do not find this to be fault by the Council.
  4. There is no evidence that Mr B’s suspension was reconsidered after the initial decision on 3 May 2017. Mr B believes that information passed to the Council by the police on 11 May would have provided grounds for ending his suspension.
  5. Mr B was still subject to a live criminal investigation at the time. The information provided over the telephone to the Council by the police included a short descriptive summary of the CCTV evidence, which was deemed inconclusive, and not the evidence itself.
  6. Even if another strategy meeting had been held once the CCTV had been viewed by the police, the outcome would almost certainly have been that Mr B would have remained suspended unless the police determined themselves the criminal investigation should not continue. I do not find this to be fault by the Council.

The CCTV evidence

  1. CCTV evidence was acquired and held by the police as part of the criminal investigation. There is no indication the CCTV evidence was ever held by the Council in viewable form. The police gave the Council a short descriptive precis of what it thought the CCTV showed as part of an update over the telephone on 11 May 2017.
  2. As it was evidence in a criminal investigation, the Council had no powers over the CCTV. It is not the Council’s role to monitor police investigations to ensure they are carried out properly. Disclosure of the CCTV evidence as part of a criminal investigation was a function of the police and Crown Prosecution Service, not a function of the Council and therefore cannot be fault by the Council. I am unable to consider any injustice suffered by Mr B arising from the criminal investigation, because this was not a responsibility or function of the Council.

Review meetings and updates received from the police by the Council

  1. The casefile shows that a senior manager from Mr B’s employer acted as case manager. It is clear that Mr B communicated with his employer regarding the case.
  2. The police log of the investigation shows that information was shared with the Council on several occasions. The Council casefile shows that updates were provided by the police by email or telephone on 5 May, 11 May, 31 July, 6 Aug, 15 September and 22 December.
  3. The casefile shows that:
    • the contact on 5 May was a short update concerning progress of the police investigation;
    • the contact on 11 May contained a short precis of CCTV evidence;
    • the contacts on 31 July and 6 Aug contained no new or relevant information;
    • the updates on 15 September and 22 December were passed to Mr B’s employer;
    • the update on 22 December contained the outcome of the criminal proceedings.
  4. Working with Children policy para 33 identifies the designated officer as having overall responsibility for oversight of procedures and resolving inter-agency issues. It also says that reviews should be conducted at fortnightly or monthly intervals.
  5. Working with Children policy para 35 says the police should also set target dates for review of progress of police investigations on the police. The wording of para 35 indicates the requirements on the police are in addition to those in para 33.
  6. The decision was made at the multi-agency strategy meeting on 3 May that the allegation against Mr B would be taken forward as a police investigation. Until the conclusion of that investigation, the Council’s involvement was necessarily limited.
  7. The updates from the police were recorded in the casefile. It is evident the Council pro-actively sought an update from the police on 31 July 2017 and did not passively wait for information.
  8. There is no evidence of review meetings until the Council attempted to convene one in January 2018. I find this to be fault by the Council because it did not comply with Working with Children policy para 33. But that caused no injustice to Mr B, because the police criminal investigation was still current and updates were being sought and received by the Council from the police. There would have been little additional benefit to holding review meetings.
  9. There is no evidence the Council conspired with the police to cause Mr B injustice. The designated officer did attempt to arrange a strategy review meeting, on the same day as learning of the outcome of Mr B’s criminal case. The police declined to attend the meeting and it did not go ahead. The Council had no power to compel the police to attend. I do not find this to be fault by the Council.
  10. I am aware of Mr B’s strong feeling that the investigations should have been brought to a much earlier conclusion on the evidence, which includes the interim finding by the professional body and that he has suffered significant injustice as a result. I am unable to consider any injustice suffered by Mr B arising from the criminal investigation, because this was not a responsibility or function of the Council.

Information sharing requests by the Council

  1. Working with Children para 45 says wherever possible, the employer should ask the police to obtain consent to share statements and evidence for use in the employer disciplinary process. However, the Council not the employer, made the decision as to whether to require Mr B’s employer to conduct an internal investigation. Consequently, the responsibility in this case for obtaining consent to share evidence in an internal investigation was the Council’s. It was within the designated officer’s role, (resolving inter-agency issues), to accomplish this.
  2. There is no evidence the Council asked the police during the ongoing criminal investigation to either obtain consent to share material for use in the employer disciplinary process, or recommend to Mr B’s employer it could do this. I find this to be fault by the Council, as had information sharing requests been processed during the preceding months, it would have ensured that all relevant information would have been available to Mr B’s employer immediately after the conclusion of the court case in December 2017.
  3. However, this did not cause any injustice to Mr B, because sufficient material was provided to Agency M to conduct the internal investigation by Mr B himself and due to leave over the Christmas period, the internal investigation would, on the balance of probabilities, not have been started earlier.

Mr B’s criminal trial

  1. Mr B’s trial was held in December 2017. His defence made a submission for ‘no case to answer’, which the court upheld. Accordingly, Mr B was acquitted and found not guilty. The standard of proof required in a criminal court is that of ‘beyond reasonable doubt’.

The decision to conduct an internal investigation

  1. The Council received an investigation record from the police through the Multi-Agency Safeguarding Hub by email on 22 December 2017.
  2. The Ombudsman accepts that due to holidays and the Christmas period, the Council was first aware of this information and the court outcome on 4 January 2018, approximately a two-week delay.
  3. ‘Working with Children’ para 47 says the information available should inform the decision as to how to proceed. The options will depend on the circumstances of the case and the consideration will need to take into account the result of the police investigation or the trial, as well as the different standard of proof required between criminal and internal investigations. The implication is the information considered should be shared.
  4. Emails sent to the Council by Mr B on 4 January 2018 indicate that he thought there could still be a finding against him by an internal investigation. This view was reinforced by a support agency that Mr B contacted.
  5. It is clear from the casefile the Council considered what the next steps should be and detailed this in an email on 4 January 2018. It is recorded that there should be an internal investigation due to the different standards of proof required between a criminal and an internal investigation.
  6. The investigation record summarised the end of the criminal case saying there was no case to answer, that Mr B could not have formed the intention to commit a crime and the case was dismissed with Mr B being not guilty.
  7. The Council says it also considered the full magistrates’ statement. The evidence confirms the Council had considered more than the investigation record sent to it by the Police. The Council say the magistrate’s recording of their impression of honesty of the alleged victim indicated there needed to be further consideration by the employer of conduct matters.
  8. There is no detailed record in the casefile that it made any specific consideration of Mr B’s successful application for no case to answer, the Magistrates’ statement, or the reasoning for it, which resulted in his acquittal.
  9. The Council evidently did consider the outcome of the criminal trial. I am unable to consider the merits of that decision. The Council then asked Agency M on 4 January 2018 to undertake an internal investigation. Based on the information considered by the Council, I do not consider the Council was at fault in requesting Mr B’s employers to conduct an internal investigation because it based that decision on the different standards of proof applicable as well as the actual outcome of the trial.

The passing of information to assist the internal investigation

  1. The Council recorded on the casefile that Mr B’s employer had the same information as the Council. The Council did not send the investigation record to Agency M.
  2. The investigation record was sent by email to the Council by the Police in an unredacted document. The email was identified as containing confidential information classified as ‘Official Sensitive’ and should not be disclosed other than to health, police, central and local government.
  3. There is no rationale recorded on the Council casefile as to why it did not pass the information it held to Agency M. The Council says it acted in accordance with a telephone conversation with a police officer on 9 January 2018 who expressed concern about data protection and advised that Mr B had been asked to contact the Police Legal Department to request any information. Based on the information available to the Council, I do not consider the Council was at fault in not passing the investigation record to Mr B’s employer.

The internal investigation and subsequent events

  1. Mr B shared information that he had available to him from his defence lawyer with Agency M. Mr B’s employer wrote in the final report it was satisfied it had sufficient information to be able to progress the internal investigation on 4 January 2018.
  2. Agency M completed the internal investigation on 19 February 2018, after 6 ½ weeks and notified the Council of the outcome. The internal investigation concluded the allegation against Mr B was false. I do not consider the Council was at fault.
  3. Mr B received a new DBS clearance in March 2018. Mr B was cleared by the professional body in 2018. These were consequences of the initial investigation. I do not consider that this was fault by the Council.
  4. The Council has already revised its policy for dealing with allegations of abuse made against people working with children. The new policy, introduced in February 2018, includes new recording templates relating to Referrals, Investigatory Reports and Suspension Risk Assessments.

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Final decision

  1. I have found fault by the Council because:
    • it did not hold regular review meetings
    • it did not document Mr B’s suspension fully, and
    • it did not put in place information sharing agreements, which could potentially have delayed the internal investigation.
  2. This did not lead to injustice to Mr B, as additional review meetings would not have influenced the criminal investigation, he would have remained suspended, and his employer was able to conduct the internal investigation without delay using evidence that Mr B supplied himself. I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr B’s concerns that the Council’s policy concerning allegations of abuse made against teachers are different from those of other Council’s. The Council’s policy reflects the statutory guidance and policies held by other Councils are not relevant to this investigation.
  2. I have not investigated any aspect of the police investigation. If Mr B has any concerns about the investigation conducted by the police, he should contact the IOPC (Independent Office for Police Conduct.)
  3. I have not investigated any action taken by Agency M, Mr B’s employer. The Ombudsman cannot investigate Agency M because it is not the Council, and was not acting on behalf of the Council.

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Investigator's decision on behalf of the Ombudsman

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