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East Riding of Yorkshire Council (17 010 856)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 29 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman found fault with the Council’s failure to explain why it considered the complainant was no longer suitable to operate a bus service. This meant the complainant was not given an opportunity to make a proper appeal against the decision. The Council agreed to apologise for this fault and give the complainant a further opportunity to appeal.

The complaint

  1. The complainant, who I will call Mr M, is complaining about East Riding of Yorkshire Council’s (the Council’s) the handling of allegations against him. Mr M complains that the Council:
  • Did not promptly provide him with details of the allegations against him. Mr M says this meant he had to appeal against the Council’s decision without having all the necessary information available to him.
  • Failed to properly investigate the allegations.
  • Disregarded the evidence and references he provided.
  • Did not address the issues he raised in his letters in 2017.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

  1. In reaching this decision, I considered information provided by Mr M and discussed the complaint with him. I also considered information provided by the Council. This included its correspondence with Mr M and the documentation relating to its investigation. In addition, I took into account relevant law and guidance.
  2. In addition, I considered comments from Mr M and the Council on my draft decision statement.

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What I found

  1. The Children Act 1989 and Children Act 2004 place a duty on local authorities to safeguard and promote the welfare of all children and young people in their area.
  2. The Government produced guidance to accompany this legislation entitled Working together to safeguard children (Working Together). Working Together emphasises the importance of “a child-centred approach”. It explains that “[a]nyone working with children should see and speak to the child; listen to what they say; take their views seriously; and work with them collaboratively when deciding how to support their needs.”

Local guidance

  1. In September 2016, the Council produced a safeguarding policy specific to its transport services. This is entitled Transport Services Safeguarding Policy and Risk Assessment Process for Vetting Approved Bus and Community Transport Drivers (the local guidance).
  2. The local guidance sets out what the Council should do if a disclosure brings into question the suitability of a driver to operate transport services contracts. It stipulates that the Council must “take action to fully investigate the matter and make a decision to protect the public, particularly children and vulnerable adults”.
  3. The local guidance also says “[o]nce a final decision has been made, Transport Services will contact the Driver/Operator in writing to confirm the decision. If a suspension or ban is necessary, the reason the Driver/Operator has been suspended and how long the suspension will last will be made clear and the process of how to appeal also explained.”

Key facts

  1. In 2017, at the time of the events Mr M is complaining about, he worked for a private bus company (the bus company) as a driver. The bus company is contracted by the Council to provide some school bus services in the area. Mr M had been the driver on one school bus route for over a year.
  2. In mid-2017, the police contacted the Council to report that parents of children on the bus route had raised concerns about Mr M’s behaviour. Specifically, the parents felt Mr M behaved in a way that was overly-familiar and made the children uncomfortable.
  3. The police advised the Council that they did not intend to take any further action as Mr M had not committed an offence. However, the police agreed it would be appropriate to interview Mr M.
  4. The Council arranged a risk assessment meeting. This was attended by the Council, the bus company and Mr M.
  5. The Council concluded that Mr M had not been honest in the answers he provided at the meeting. The Council also found there was evidence to support the allegations that Mr M had shared personal information with the children. As a result, the Council decided he was not suitable to operate a service.
  6. The following month, the Council informed the bus company of its decision. It also explained that Mr M would be able to reapply in two years. The Council told the bus company Mr M could appeal against the decision, but would need to do so within 10 days.
  7. Mr M subsequently appealed. He said the Council had not provided him with details of the allegations against him. He said he had been a driver for 20 years and had an unblemished record. Mr M queried whether the Council had received any complaints from any of the other school services he had driven on the past four years. In addition, Mr M provided character references from three previous employers.
  8. The Council declined to uphold Mr M’s appeal. It said information given to drivers states they must not share personal information about themselves. The Council said Mr M told the risk assessment meeting that he did not discuss his family life with pupils. Despite this, it said pupils were aware of information about him that they could not have known unless he had provided them with it. In addition, the Council noted Mr M had said he had an unblemished record. However, it said the bus company reported previously having received complaints about Mr M’s behaviour from elderly passengers.
  9. The Council concluded that “[i]n light of the previous complaints received by [the bus company] about your interactions with passengers, your sharing of personal information with pupils and your denial that you had done so, I have concerns about both your interactions with potentially vulnerable passengers, and about the accuracy and completeness of your version of events”.

Analysis

  1. Mr M complained that the Council did not make clear what he was alleged to have done. As a result, he said it was not possible for him to make a meaningful appeal. He said he did not become fully aware of the allegations until the Council wrote to him declining to uphold his appeal. He said the Council ignored his later representations.
  2. In its response to my enquiries, the Council told me officers felt there was enough evidence, on balance of probabilities, to substantiate the allegations against Mr M. The Council said it told Mr M of the allegations against him at the risk assessment meeting. The Council said it was not correct that Mr M only became aware of the allegations on receiving the Council’s letter declining to uphold his appeal. The Council said the consideration of Mr M’s appeal was the final stage of its process and that it did not consider a detailed response to Mr M’s second letter to be warranted.
  3. The Council’s note of the risk assessment meeting in records that “[Mr M] was told that an allegation had been made that he was showing some pupils unwanted attention that made them feel intimidated and frightened of him”. The note shows Mr M denied talking to children about his family and that he could not understand why they would feel unnerved by him. Mr M also confirmed he had read and understood the Council’s Driver and Passenger Assistant card. This states that drivers must not “[b]ecome over-friendly in any way with children”. The notes show Mr M denied the allegations against him.
  4. The Council then went on to consider whether Mr M was suitable to operate a service. It concluded that he was not suitable. The Council officers felt he had not answered questions about his interaction with the children truthfully. They also concluded there was sufficient evidence to suggest Mr M had shared personal information with the Council. As a result, the Council noted “the assessing officers felt he was not being truthful and were left with serious doubts over his suitability to continue operating home to school contracts.”
  5. The Council’s records show it did inform Mr M that children had made allegations against him. However, there is no evidence it informed him at this stage him of the reasons why it felt he was no longer suitable to operate a service.
  6. The Council wrote to the bus company with its decision shortly after this. The Council’s email stated simply that “[t]he outcome of the recent risk assessment for [Mr M]…is that he is no longer an approved driver for Passenger Services contracts, this will last for a period of 2 years…after which he may reapply.”
  7. The Council’s local guidance says that “[i]f a suspension or ban is necessary, the reason the Driver/Operator has been suspended and how long the suspension will last will be made clear and the process of how to appeal also explained.” The Council’s email contained no explanation for its decision. Similarly, it provided no information about the appeal process. Mr M only became aware of this when the bus company requested this information from the Council.
  8. In my view, it was not correct for the Council to assume that Mr M understood the reasons for its decision. Indeed, the risk assessment meeting notes show he did not believe he had done anything wrong. The local guidance makes clear that the Council should explain the reasons for its decision and advise the person affected how to appeal. The Council did not do that in this case and this is fault.
  9. The correspondence shows the Council did not provide Mr M with this information until it wrote to him declining to uphold his appeal. When Mr M made further representations on receipt of the Council’s letter, the Council responded to say that “[t]he appeal against the original decision exhausted the Council’s internal process.” Taking everything into account, I share Mr M’s view that the Council did not initially give him the information he needed to make a meaningful appeal against the decision.
  10. The Council has now agreed to take action to remedy this.

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Agreed action

  1. I found fault on the part of the Council in relation to its failure to inform Mr M of the reasons for its decision. I also found fault on the part of the Council in terms of its failure to inform him how he could appeal against the decision.
  2. Within one month of my final decision statement, the Council will write to Mr M to apologise for the fault I have identified. The Council will also clearly set out the reasons for its decision and invite Mr M to submit a further appeal if he wishes to do so.

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Final decision

  1. In my view, the action I have recommended represents a reasonable and proportionate remedy for the injustice arising from the fault I have identified. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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