Devon County Council (20 006 171)

Category : Education > Other

Decision : Upheld

Decision date : 09 Mar 2021

The Ombudsman's final decision:

Summary: The Council is at fault for losing or failing to keep Ms X’s records from her time in care, including a letter from her birth mother, who is now deceased. The Council has agreed to apologise and pay Ms X £1000 in recognition of the injustice caused.

The complaint

  1. Ms X complains that the Council has lost all its records from her time in foster care in the early 1990s. This includes a letter to her from her birth mother, who is now deceased.
  2. Ms X also complains about the way the Council handled her request to access her records and resulting complaints.
  3. As a result, Ms X will never know what her mother wrote to her, and has no record of her early life.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)

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How I considered this complaint

  1. I spoke to Ms X about the complaint and made written enquiries of the Council.
  2. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  3. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Background

  1. The Council took Ms X into care as a child in the early 1990s because the court decided her mother could not look after her. She was in care until 1993, when the court ordered she should live with her father. Ms X’s mother died when she was a teenager.
  2. Now an adult, Ms X has seen some of the court documents about her case which her father kept. In these documents is a reference to a letter written by her mother to be given to Ms X when she was older.
  3. In December 2019, Ms X contacted the Council. She asked it to look for the letter from her mother. The Council got back to Ms X the next day to tell her it could not find the letter.
  4. Ms X complained to the Council later in December. The Council responded to
    Ms X’s complaint in March 2020. The response said that despite an extensive search, the Council could not find any records about Ms X as a child.
  5. An officer from the Council met with Ms X in June and again in October 2020. The Council conducted further searches. At this point, the Council told Ms X that it had taken all the steps it could to find her file.

My findings

  1. Ms X says the Council took too long to respond to her request and deal with her complaint. The Council accepts that it took over three months to respond formally to Ms X’s complaint in December 2019. It says it was conducting extensive searches to look for the file. The Council’s response to my enquiries shows that this is the case. However, the Council could have been more proactive in keeping Ms X informed about its actions and when she could expect a response. Its failure to do so caused Ms X unnecessary added anxiety.
  2. The Children Act 1989, which was in force when Ms X left care, said councils had to keep records for at least 50 years. The Council accepts that it has lost Ms X’s children’s services file. This is fault.
  3. As a result, Ms X will never know what was in the letter her mother wrote to her. This is a significant injustice to Ms X.
  4. Usually, when we find fault causing injustice, the Ombudsman tries to put the complainant back into the position they would have been in were it not for the fault. That is not possible in this case.
  5. When I spoke to Ms X about her complaint, I asked what would help put this right for her if the Council could not find her file. She said she wanted reassurance that the Council had done a thorough search and, if possible, an explanation of how it lost her file.
  6. In response to my enquiries, the Council provided evidence of how it looked for Ms X’s file. This included:
    • Searching the Council’s archives
    • Searching the social care electronic recording systems
    • Searching paper documents kept in local offices
    • Searching again using the names of Ms X’s half-siblings
    • Asking the Council’s legal services to look in its records
  7. The only search that produced results was from legal services, which said there was a file but it was destroyed in December 2011. I asked the Council to tell me what this file would have contained. The Council says the file contained records of the care proceedings. It was deleted in line with the file retention policy.
  8. It is unlikely this file would have contained the letter from Ms X’s mother or other details about her childhood. It is more likely the file contained similar information to that Ms X has already seen from her father’s part in the court proceedings about her.
  9. I asked the Council to tell me how it thought Ms X’s file was lost. The Council explained that in 1998, the area where Ms X lived became a unitary authority. This means it took over responsibility for delivering children’s social care services for that area. I shall refer to this as Council B.
  10. The Council says it believes Ms X’s file should have been transferred to Council B at this time. With Ms X’s permission, the Council contacted Council B and asked it to look for Ms X’s file.
  11. Due to the COVID-19 restrictions, Council B could not immediately get access to its paper files. It did so in August 2020 and confirmed that although it held files on Ms X’s half-siblings, it did not have a file from Ms X’s time in care. It also looked through her half-siblings’ files to check if the letter from her mother was there. Council B confirmed that it was not.
  12. From the response to my enquiries, it seems there is some uncertainty, both in the Council and at Council B over which files were transferred in 1998. Some of the correspondence suggests that only files for children who were still ‘open’ to children’s services were transferred. However, correspondence from Council B suggests that files for all those who were still under 18 in 1998 were transferred to it.
  13. Given the confusion, it seems likely that this is the point at which the files were lost or destroyed. There is no evidence the Council did transfer Ms X’s file to Council B. The Court made a care order which said the Council had to look after Ms X. On this basis, I find the Council was responsible for the data when it was lost.

Agreed action

  1. The injustice to Ms X is significant and cannot be easily quantified. To recognise this, the Council has agreed to:
    • Apologise in writing to Ms X
    • Pay Ms X £1000
  2. The Council should take this action within four weeks of my final decision.

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Final decision

  1. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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