Summary: Mr X complains about the investigation carried out by the Council’s licensing officers leading to a decision to suspend his licence to drive a taxi. He also says officers used information he disclosed in a meeting to refer his mother for a social care assessment without his or her consent. The Ombudsman will not investigate Mr X’s complaint about the Council’s licensing investigation as his concerns could have been dealt with by appealing at the time. There was however fault by the Council when it did not consider whether to seek Mr X’s consent before making a safeguarding referral. It was not a referral for a social care assessment. Although there was fault, it caused no significant personal injustice to Mr X as a result.

The complaint

1. Mr X complains about the investigation carried out by the Council’s licensing officers leading to a decision to suspend his licence to drive a taxi. He makes various allegations of impropriety by the officers involved and their manager. He also complains, due to information he disclosed in a meeting with the licensing officers, the Council referred his mother for a social care assessment without his or her consent.
2. Mr X says as a result the Council destroyed his livelihood and reputation and impacted his ability to care for his mother in the last months of her life.

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What I have investigated

3. Having considered the evidence available to me, I have decided I should only investigate the part of Mr X’s complaint about the referral made to adult social care.
4. I have seen the Council’s safeguarding policy, which explains the actions it expects its staff to take.
5. I have outlined my reasons for not investigating Mr X’s complaint about the Council’s licensing officers at the end of this statement.

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The Ombudsman’s role and powers

6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
8. 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)
9. 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

10. I spoke with Mr X, read his complaint and the supporting documents he sent to the Ombudsman. I wrote to the Council to make enquiries and reviewed the material it sent in response.
11. I shared a copy of my draft decision with Mr X and the Council and I invited them to comment on it. I carefully considered the responses from both parties before making my final decision.

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What I found

12. At the time of the events of this complaint, Mr X was a private hire taxi driver, licensed by the Council. Mr X and the passengers in his taxi came to the attention of the police in the early hours of one morning. A police officer later expressed concerns to the Council’s licensing department about the incident and how Mr X presented himself.
13. A licensing officer telephoned Mr X and discussed the incident with him. Because of his account, the officer invited Mr X to attend the Council’s offices to discuss the matter further.
14. Mr X attended the meeting with two of the Council’s licensing officers. The Council says, subject to Mr X making any significant disclosures, it had already decided to suspend his licence. Mr X says he felt the meeting was an ‘ambush’ with a ‘hidden agenda’. He says a licensing officer asked him questions about his personal circumstances without explaining why. He says the meeting involved a ‘bizarre conversation’ about how he could work as a private hire taxi driver while asking being an unpaid carer for his mother. He says he did not ask for help and did not need it.
15. After the meeting, the licensing officer discussed her concerns for Mr X and his mother with her manager. An email sent on a Friday afternoon shows the manager advised the licensing officer to make a referral to the Council’s adult social care team. He explained how to do this. However records show the referral happened the following Monday. The Council says the licensing officer made the referral out of concern for Mr X and his mother.
16. Mr X says the licensing officer did not ask his permission to make the referral to social services. He believes it was a breach of data protection laws to pass his information on in this way. He says the allegations make in the referral were ‘unproven’, ‘fabricated’ and ‘untrue’. He also says it was a breach of the Regulator’s Code. Mr X says the fact the licensing officer waited until after the weekend to make the referral proves it was not an emergency justifying a referral without his or his mother’s consent.
17. The Council says the referral was a safeguarding matter and the licensing officer did not seek Mr X’s consent because they did not know they should. It disputes it was a safeguarding referral under its safeguarding procedure, although it accepts it related to a ‘safeguarding concern’ and it need to “assess the vulnerability” of Mr X’s mother.
18. Adult social care’s record of the referral details the telephone call between the licensing officer and the social worker, and later actions completed. This shows the social worker called Mr X to get more information from him. Mr X gave his side of events about the taxi incident and his mother’s care arrangements. Mr X says if the social worker had checked the records properly, she would have noticed his mother had a current Care Act assessment already in place. He says the social worker did not do her job properly.
19. Mr X also complains the Council defamed him in making the referral, as the social worker went on to contact the community matron and GP involved in his mother’s care. The Council’s records show the social worker specifically asked for Mr X’s permission to call the community matron and called his GP surgery at his request.
20. Two days after receiving the referral, and based on the community matron’s input, the Council’s adult social care team decided it did not need to take any further action. Mr X says this supports his view the referral was unnecessary.

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Analysis

21. This part of Mr X’s complaint is about a safeguarding referral made between departments of the Council. I have considered Mr X’s views and the evidence provided by the Council. The Council disputes it was a formal safeguarding referral but on the facts I cannot think of any other reasonable way to describe it.
22. I do not agree with Mr X the questioning by the licensing officer at the meeting was inappropriate and therefore fault. Ultimately, any line of questioning is a matter of an officer’s professional judgement. The Ombudsman cannot question a professional judgement decision as long as it was made without fault. In this case, the officer obviously believed it relevant to the events leading to the suspension of Mr X’s licence. The handwritten notes from the licensing officer at the meeting say Mr X was, “under pressure caring for mum”.
23. However, it is also clear Mr X was not told the information he gave might be shared with adult social services. The Council has been unable to give a reason why this did not happen, nor able to show how the licensing officers balanced the advantages and disadvantages of getting Mr X’s consent.
24. Mr X points out the Care Act and supporting guidance says consent should be sought for a referral for a Care Act assessment. However, the record of the referral shows it was much more general than that and was really a safeguarding referral. There is no specific guidance about consent in cases of adult safeguarding referrals. However, I have concluded it would be good practice to at least consider the question of consent and it was fault not to do so.
25. Although the officers could not reasonably have been expected to try to speak to Mr X’s mother before making the referral, as it related partly to concerns for him too I cannot see a reason his consent should not have been sought.
26. Although I do not think the time taken to make the referral was fault, the Council might want to reflect on whether the officers involved met its expectations in that regard in this case. It told me in response to my enquiries it expects safeguarding referral to made ‘without delay’. I am satisfied the time taken supports a view there were no immediate concerns that would justify going ahead without seeking Mr X’s consent.
27. That said, nothing I have seen supports the idea the licensing officer acted in bad faith in making the referral without Mr X’s consent. Nor does my decision mean the Council could not still have made the referral even without Mr X’s consent. That would be a professional judgement decision for the officers to take on its own merits.
28. Based on the evidence I have seen, I also cannot conclude the referral was inaccurate. The record shows the referral reflected the position the Council had taken at that point about Mr X’s private hire driver’s licence. He clearly disagrees with it but, linked at it is to the decision to suspend his licence which I am not investigating, I cannot say the presentation of the information was fault.
29. Mr X also raised the Regulator’s Code in respect of the meeting with the licensing officers and the later safeguarding referral. As a safeguarding referral is not a regulatory function, I see no immediate role for the Regulator’s Code here. I accept the referral came about as a by-product of a regulatory function – the suspension of Mr X’s licence – but that is the limit of it.
30. I have considered any injustice caused to Mr X because of the Council’s failure to consider whether it should get his consent for the safeguarding referral. Mr X has outlined the injustice he says the Council caused.
31. Mr X says the referral defamed him, particularly as social workers shared concerns outside of the Council with other professionals involved in the care of his mother. However, the social worker’s note shows she asked Mr X for consent for her to speak with the community matron and he gave ‘verbal permission’ for it to happen. It was Mr X who called and asked the social worker to speak to his GP surgery on his behalf.
32. Mr X also makes the argument the safeguarding referral was inaccurate or improper because the Council later found no reason to act on it. But that fundamentally misrepresents the purpose of a safeguarding referral, which can rely on suspicion alone, as long as there is an explanation for why the suspicion exists. It is then up to social services to make a professional assessment of the circumstances and decide what to do. Nor do I agree just because there is no further action taken it means the referral was inappropriate.
33. I have decided there was no significant injustice for Mr X because of the failure to seek his consent to make the safeguarding referral. The evidence leads me to believe, on balance, the licensing officer would have made the referral either way. And it had no discernible negative effect for Mr X or his mother. The fact he had to speak to a social worker on the telephone is not in itself an injustice.

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Final decision

34. The Council’s failure to consider whether to get Mr X’s consent for a safeguarding referral was fault. However, this did not cause him a significant personal injustice.

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Parts of the complaint that I did not investigate

35. I have concluded I should not investigate Mr X’s complaint about the Council’s licensing officers or their investigation.
36. Mr X alleges, in summary, the officers misrepresented or misunderstood the evidence available to them. He says they made a pre-determined decision to suspend his licence without getting his full account of events and later did not properly consider the medical evidence he provided.
37. Suspending a private hire driver’s licence triggers a statutory right of appeal to the Magistrates’ Court within 21 days. The suspension notice issued to Mr X explained that to him clearly. Mr X told me he did not appeal because of his concerns about employing a solicitor and being responsible for the costs if he lost. He says he asked for advice from his employer and some solicitors before reaching his decision. He also says he could not represent himself because of his mother’s care needs and his need to prioritise find another job.
38. Mr X also argues his allegations are distinct from the suspension decision itself and so I can and should investigate them. I disagree. The injustice Mr X claims is a direct result of the suspension of his licence. It seems to me the standard of the investigation carried out by the Council’s officers, their conclusions and Mr X’s medical evidence are all things which he could have raised on appeal to the Magistrates’ Court. Most of the evidence Mr X now relies on in his complaint to the Ombudsman was available to him at the time. Any Magistrates’ Court hearing would have considered all of the facts of the case again, not just legal arguments.
39. In the circumstances of this case, I am satisfied it was reasonable to expect Mr X to use his right of appeal to the court.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman