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Royal Borough of Kingston upon Thames (19 007 853)

Category : Other Categories > Leisure and culture

Decision : Upheld

Decision date : 18 Feb 2020

The Ombudsman's final decision:

Summary: Mrs B complained the Council failed to properly investigate her concerns about the actions of her daughter’s swimming teacher. There is no fault in the investigation but there is fault in some procedural matters, failing to keep proper records and failing to tell Mrs B the outcome of the investigation. That undermined Mrs B’s confidence in the investigation and led to her going to time and trouble to pursue her complaint. An apology, letter to Mrs B to explain the outcome of the investigation, payment to Mrs B and a reminder to officers and the leisure centre is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complained the Council failed to properly investigate her concerns about the actions of her daughter’s swimming teacher. Mrs B says the Council failed to consider her evidence or explain its decision.

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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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
  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. As part of the investigation, I have:
    • considered the complaint and Mrs B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Mrs B’s comments on my draft decision; and
    • gave the Council an opportunity to comment on my draft decision.

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What I found

Background

  1. Mrs B’s daughter took part in swimming lessons in a Council leisure centre. Mrs B raised concerns with the leisure centre following her daughter’s swimming lesson in April 2019. Mrs B alleged the swimming teacher dug her fingers into her daughter’s side, causing a scratch, and used racist language towards her daughter.
  2. On 2 May 2019 the centre manager referred the case to the safeguarding adviser who said she should get staff statements and review the CCTV footage. The centre manager provided an update to the safeguarding adviser on 7 May. The safeguarding manager asked whether the centre manager had referred the case to the local authority designated officer (LADO). The centre manager said she had not done that but would make the referral as a priority. It is clear the centre manager referred the case to the LADO and had a telephone conversation with her but there is no documentary evidence. Based on the outcome document later produced by the LADO it is clear the LADO asked the leisure centre to carry out the investigation.
  3. The leisure centre manager met with Mrs B on 8 May. The note of that meeting recorded Mrs B said the swimming teacher had pressed her fingers into both sides of her daughter to straighten her legs. Mrs B showed the centre manager a photograph of a scratch on her daughter’s side.
  4. On 13 May the LADO completed the outcome document although she sent that to the wrong email address for the leisure centre manager. The document completed by the LADO recorded the complaint as about a swimming coach physically and racially abusing Mrs B’s daughter. The LADO assessed the risk as low as she did not consider there was evidence of physical harm. The LADO closed the case as she was satisfied the leisure centre could investigate but recommended leisure centre staff receive antiracist/equalities training.
  5. The leisure centre manager finished the investigation on 3 June. The conclusion was the swimming teacher had not wilfully discriminated and no formal action was taken. Instead, equality and diversity training was arranged. The leisure centre manager did not tell Mrs B the outcome of the investigation due to data protection concerns.
  6. Mrs B put in a complaint to the Council on 5 June. Mrs B asked the Council to investigate and reassure her it was protecting vulnerable children at the leisure centre. The Council told Mrs B it knew about the incident and the leisure centre had kept it up-to-date during its investigation. The Council told Mrs B it could not share the content or the outcome of the investigation due to data protection. The Council said though it was satisfied the leisure centre had completed a thorough investigation and followed the right procedure.
  7. Mrs B was not happy with that response and contacted the Council again on 12 June. Mrs B said she had a right to know if the investigation had supported or refuted her complaint and to know the outcome and receive an explanation. Mrs B sought proof the leisure centre had completed a full and thorough investigation and asked for more explanation about the Council’s decision.
  8. On 13 June the Council’s leisure contracts manager contacted the LADO about the investigation. The manager asked for a summary of LADO’s involvement and why she was satisfied no physical harm had taken place.
  9. On 14 June the Council told Mrs B it could not share the detail or outcome of the investigation due to data protection. The Council explained the leisure centre had followed its safeguarding and management policies by suspending the teacher while investigating. The Council explained the leisure centre had liaised with the LADO who said they were satisfied no physical abuse could be proven based on the evidence the leisure centre had.
  10. On 16 June Mrs B asked to escalate her complaint. Mrs B queried why the LADO did not consider the photograph she provided evidence of physical harm. The Council agreed to take the complaint to stage two.
  11. The Council contacted the LADO on 26 June about the photograph Mrs B had provided. The LADO told the Council the previous LADO did not know about any evidence of a mark. The new LADO told the Council she had considered the photograph and would still have decided the leisure centre could investigate the concerns as the scratch could still be accidental. The LADO noted as swimming is a physical sport a coach would help the children manually with their technique and accidental contact of this nature could occur.
  12. On 4 July the Council responded to the complaint at stage two. The Council said it had contacted the LADO and provided her with a copy of Mrs B’s email and photograph. The Council said the LADO had now considered the photograph and still considered the leisure centre could investigate the concerns, which it already had. The Council reiterated it could not share the outcome of the investigation with Mrs B due to employee confidentiality.

Council process for reporting and managing allegations against adults who work or volunteer in Kingston and Richmond with children

  1. This document says every local authority has a statutory responsibility to have a designated officer who is responsible for coordinating a response to concerns that an adult who worked with children may have caused them harm. It says the role of the designated officer includes:
    • providing advice/guidance to employers;
    • liaison with the police and other agencies;
    • monitoring the progress of referrals to ensure they are dealt with as quickly as possible, consistent with a thorough and fair process;
    • disseminate learning.
  2. The procedure says when an allegation is referred to the designated officer they will:
    • decide whether the allegation meets the threshold for the designated officer's involvement;
    • decide the next steps;
    • decide how to manage talking about the concerns with the adult who may have harmed the child;
    • decide how to inform the child's parents;
    • provide views on suspension, although the decision rests with the employer.
  3. The procedure says regardless of the nature of the allegations and who receives the allegation it must be reported to the designated officer.
  4. The procedure says when a referral is sent to the designated officer they need to decide whether the adult may have:
    • behaved in a way that has harmed, or may have harmed, a child;
    • possibly committed a criminal offence against or related to a child;
    • behaved towards a child or children in a way that indicates they may pose a risk of harm to children.
  5. One option following consideration by the LADO is for no further action and for the agency reporting to the LADO to feedback on its own investigations and decisions made.

Analysis

  1. Mrs B says the Council failed to properly investigate her concerns about the actions of her daughter’s swimming teacher. Mrs B says the Council failed to consider the photographic evidence she provided and inaccurately referred to an injury to her daughter’s leg when it was an injury to her daughter’s side, which suggests it did not investigate properly.
  2. I first have to consider what should have happened when Mrs B reported safeguarding concerns to the leisure centre in April 2019. Although Mrs B believes the LADO should have investigated that is not necessarily the case. The procedures are clear safeguarding issues about children should be referred to the LADO but the designated officer can decide to refer the case back to, in this case, the leisure centre to investigate. So, asking the leisure centre to carry out the investigation is not evidence of fault.
  3. However, the safeguarding procedures also make clear where an allegation is made against a member of staff working with a child or young person which falls within the statutory criteria, which I refer to in paragraph 20, a referral should be made to the LADO. The LADO then has to agree the appropriate action. In this case the evidence I have seen satisfies me the leisure centre delayed telling the LADO about the allegation. The leisure centre did not make a referral to the designated officer until 7 May. By that point the leisure centre had already begun its own investigation. Failure to make a prompt referral to the LADO is fault. I do not consider the delay caused any injustice though given the LADO decided the leisure centre could complete the investigation.
  4. Mrs B complains the LADO decided to allow the leisure centre to investigate without considering the photographic evidence she had provided. There are some issues with the documentary records for this case. There is no record of the referral to the LADO in May 2019. It is also clear the leisure centre manager spoke to the LADO about the allegation following the referral. However, there is no written record of that telephone conversation. So there is no written evidence to show what information the LADO had before she decided to refer the case back to the leisure centre to investigate. Failure to keep proper records is fault. It also seems likely, given the content of the outcome document completed by the LADO, she did not see the photograph Mrs B had taken of her daughter’s injury. I say that because the LADO notes the parent had not reported seeing bruising or marks on the child to support that physical harm had taken place. That is inaccurate because Mrs B had provided a photograph to the leisure centre manager and the leisure centre manager is clear she saw that photograph and made the LADO aware of it, although she did not provide a copy. Failure to consider the photograph provided by Mrs B before deciding how to investigate the complaint is fault. That is something which could have been rectified if the LADO had sent the outcome document to the correct email address as it seems likely the centre manager would have challenged the view that Mrs B had not reported any injury, as she did when the Council contacted her following the complaint. Failing to send the outcome document to the right email address is also fault.
  5. I am, however, satisfied the Council has now referred the photograph to the new LADO. The new LADO does not consider the photograph would have warranted a different outcome. The LADO believes the scratch shown in the photograph could still be accidental as swimming is a physical sport and the coach helps children manually with their technique. The new LADO therefore decided she would have let the leisure centre complete the investigation. I therefore consider although it was fault for the first LADO not to have the photographic evidence the outcome would not have been different had she had access to Mrs B’s photograph. I recognise Mrs B may strongly disagree with that view. However, as I say in paragraph 2, it is not the Ombudsman’s role to comment on the merits of a decision that has been reached without fault. The second LADO reached her decision after considering the photographic evidence provided by Mrs B and there is therefore no fault in how that decision has been reached.
  6. I am satisfied the leisure centre carried out a proper investigation into Mrs B’s concerns. I say that because I note the manager met with Mrs B to discuss her concerns in person, considered Mrs B’s photograph, interviewed the swimming teacher complained of, interviewed other staff members who were present on the day and viewed the CCTV evidence. After considering all the information the leisure centre decided the evidence for physical harm was inconclusive. In line with the original LADO’s recommendation though staff at the leisure centre have received equalities and diversity training. As I am satisfied the leisure centre properly investigated the complaint I have no grounds to criticise it.
  7. I am, however, concerned about the information the leisure centre and the Council have given Mrs B about the outcome of the complaint. Despite going through the Council’s complaints procedure the Council has told Mrs B it cannot tell her the outcome of the investigation because to do so would breach data protection regulations. That is on the basis neither the leisure centre nor the Council can disclose information about the swimming teacher. I agree the Council cannot share with Mrs B personal information about the swimming teacher. However, that does not mean the Council cannot tell Mrs B whether it has upheld her complaint. In this case my understanding is the leisure centre did not uphold the physical abuse part of the complaint. Even that is not clear from the documentary records I have seen but my interpretation is this part of the complaint was not upheld due to lack of evidence. I do not consider telling Mrs B that, assuming my interpretation is correct, would breach data protection regulations. Mrs B had raised a serious concern about safeguarding issues relating to her daughter. She therefore had a reasonable expectation both the leisure centre and Council would tell her the outcome of its investigation. I see no reason the Council could not have done that without breaching data protection regulations. I am also satisfied the Council could have provided some details about how the leisure centre had investigated the complaint, without breaching data protection regulations. I say that particularly given the Council has agreed for me to release to Mrs B the documentary evidence it has provided to me as part of my investigation. Failure to tell Mrs B the outcome of the investigation, even if it had to be in vague terms, is fault. It is unsurprising in those circumstances Mrs B does not believe the Council and leisure centre have dealt with her concerns properly and is not reassured they have followed the correct procedure.
  8. So, I have found fault as the leisure centre failed to follow procedures at the beginning, the LADO that at first dealt with the complaint did not consider the photographic evidence and failed to keep proper records and nobody told Mrs B the outcome. Those errors did not affect the overall decision but undermined Mrs B’s confidence in the process and led her to have to go to time and trouble to pursue her complaint. I recommended the Council or leisure centre write to Mrs B to properly explain, as far as it can without breaching data protection regulations, the outcome of the investigation. I also recommended the Council apologise to Mrs B, pay her £100, send a memo to the leisure centre to remind its officers of the need to share the outcome of its investigations, in vague terms if necessary, and remind the leisure centre and the LADO of the need to keep copies of referrals and notes of telephone conversations about a referral. The Council has agreed to my recommendations.

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Agreed action

  1. Within one month of my decision the Council should:
    • Ensure either it or the leisure centre write to Mrs B to properly explain, as far as it can without breaching data protection regulations, the outcome of the investigation;
    • apologise to Mrs B for the faults identified in this statement;
    • pay Mrs B £100;
    • confirm with the leisure centre it has ensured staff have received anti-racist/equalities training;
    • send a memo to the leisure centre and remind its officers of the need to share the outcome of its investigations, in vague terms if necessary, to prevent a data protection breach; and
    • remind the leisure centre and the LADO of the need to keep copies of referrals and notes of telephone conversations about a referral.

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Final decision

  1. I have completed my investigation and found fault in part of the complaint, which has caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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