Summary: the complainant says the Council failed to keep records about his time in care and about his birth family preventing him from accessing details about his birth family when they traced him in 2016. The Council says it cannot say whether the records have been destroyed or lost but it has searched for them. It accepts fault and offered a remedy to the complainant. The Ombudsman finds the Council at fault and recommends a remedy recognising the inconvenience and stress caused to the complainant.

The complaint

1. The complainant whom I shall refer to as Mr X says that in responding to his application for information about his birth family and time in foster care the Council failed to:
• Provide within a reasonable time information he asked for through a subject access request;
• Preserve case records from 1977 to 1987;
• Prevent sharing information with Mr X about his mother’s debts;
• Provide information about his family during his time in care or on leaving care;
• Provide support and advice on dealing with information about his family when he asked for it in 2017 or meet its duty of care;
• Investigate his complains in line with its complaint’s procedure or in a timely way.
2. Mr X says finding out about his birth family later in life has caused great emotional stress not having known previously he had siblings. The loss of records Mr X says means he cannot get answers to questions he has about his time in care. For example, on what supervision of his foster care the Council undertook, why he was in care or where his parents now lived. Mr X says the Council’s reluctance to share details of his birth mother added to the distress. Mr X believes had he asked for the information in the 1980s it would have been given to him. But for the fault in failing to keep his files Mr X believes he could have accessed that information in 2016.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If 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)
6. 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

7. In considering this complaint I have:
• Read the information presented with Mr X’s complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance and policy;
• Shared my draft decision with Mr X and the Council and reflected on comments received in response.

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What I found

8. Under the Boarding Out of Children Regulations 1955 local authorities must keep records of children boarded out and keep registers of those children’s details for at least six years.
9. The Data Protection Act 1988 (now replaced by the Data Protection Act 2018) gave rights of access to individuals to their personal information.
10. The Children Act 1989 imposed a duty on councils to keep its social services records for 50 years. The Council now keeps information for 75 years.
11. Before the Children Act 1989 the Council held its records for three years in line with the Limitation Act 1980 (section 11) although in practice it kept some records for much longer.
12. Under the Adoption and Children Act 2002, and Schedule 5 of Adoption Agency Regulations 2004 (paragraph 8) councils must carry out life story work with children placed for adoption. This duty did not arise before the Regulations came into force in December 2005.
13. The Adoption and Children Act 2002 Sections 61 and 62 prescribe the procedure councils must follow if asked by an adopted child for information about their birth family. The Statutory Guidance on Adoption paragraphs 11.37 to 11.55 also give information on what a council should do to provide information.
14. The government issued statutory Guidance on Adoption on 1 July 2013 which explains the regulations made by the Secretary of State under the Adoption and Children Act 2002 and Local Authority Social Services Act 1970. The guidance includes when councils should help children understand and explore their early history and life before adoption. To meet the duty before adoption means councils must begin such work while children are in foster care awaiting adoption.

What happened

15. In 1969 the Council took Mr X into care aged 5 months. Following some time in a nursery and children’s home Mr X moved to foster carers, I shall refer to as Mr and Mrs Y when aged 8 (1977.) Mr X lived with Mr and Mrs Y until aged 16 (1985). Then he moved to new foster carers, Mr and Mrs Z until he left care in February 1987.
16. Mr X says Mr and Mrs Y did not look after him well. Although he complained Mr X says nobody followed up his concerns. In commenting on my draft decision Mr X says that his foster parents and social workers never gave him any information about his family. Mr X says the only information he received came from his social worker who spoke to him when Mr X was aged 15. Mr X says the social worker said he knew nothing about Mr X’s mother but told Mr X his father had moved overseas. Mr X says the social worker took him to visit where Mr X’s grandparents had lived but did not tell him about his living paternal grandparents, or siblings. Mr X says he did not receive any further life history work while in foster care or on leaving care.
17. On leaving council care Mr X did not receive any information about his family, and Mr X says he did not receive any support in dealing with the transition into adult life.
18. In 2016 a people finding agency contacted Mr X because a birth relation had been looking for him. Mr X did not know until this agency contacted him where his father now lived and that he had siblings. In commenting on my draft decision, Mr X says he contacted the Council to discover more about his birth family and to see the files containing information on his life in care. Mr X sought an explanation for the failure to tell him about his family.
19. The Council undertook searches within its records and those of councils who had on local government re-organisation possibly taken some records with them. It found little information about Mr X’s time in care. The Council says it either lost or destroyed the records and it cannot find all the information Mr X wants. There is no record of the Council undertaking any life story work with Mr X, or of any ‘later life’ letter unlike the work now undertaken with children taken into care.
20. Although the Council had information about Mr X’s birth mother it told him at first it could not share this with him because it did not have his mother’s permission to share it. Mr X objected to this refusal to share the information. The Council referred the matter to its Director of Safeguarding who took the view the Council should have shared information about Mr X’s family with him even in the 1970s and 1980s. Mr X says the officer told him he could see no reason for social workers not sharing details of his family with him while in foster care or on leaving care. Therefore, the Council decided it was reasonable in the circumstances to agree to his request and share Mr X’s mother’s date of birth with him.
21. The only record the Council found is a family file containing about a thousand pages of information. Mr X says 900 pages of the file concern his siblings born between 1964 and 1967. Siblings he did not know anything about and who had also been in the Council’s care. The Council had kept those files and archived them but not Mr X’s.
22. Although Mr X recalls his social worker speaking to him at the age of 15, Mr X says he received no information about any siblings even those in the Council’s care. This attempt at life history work suggested Mr X had no other family and until 2016 he lived his life believing that to be true. The lost records mean the Council cannot verify what officers told Mr X.
23. The family file contains several reports about Mr X and one social worker report about Mr X’s departure from Mr and Mrs Y’s home. Within the file Mr X found a document from a district council transferring his case files for archiving to the Council in 1993, that is six years after he left care. However, the Council cannot find those files in its archives. The file also contained twelve documents about Mr X’s mother’s debt for his board while in care and the dates of birth of his siblings. Yet when he first asked for his mother’s details the Council refused to give him her date of birth.
24. Since major re-organisation of local government in 1974 there have been other changes. This led to different councils assuming new roles and receiving records from predecessor councils. Despite searches the Council has not found any more information. Therefore, the Council cannot provide all the information Mr X wanted. Until the Children’s Act 1989 councils did not have to keep records for long periods and some destroyed them.
25. In response to Mr X’s subject access request the Council shared what information it could including about his mother’s debt to the Council which Mr X found very distressing. The lack of case records the Council says means it cannot say if Mr X should have received better care while in foster care with Mr and Mrs Y. Without contemporary records the Council says it cannot judge what happened.
26. The Council offered a meeting with a senior officer who met with Mr X in March 2018. This senior officer confirmed as a social worker he had as common professional practice in the 1970s and 1980s engaged in life history work with young people. He could see no reason for the Council not offering this to Mr X. Mr X only had one life history discussion with his social worker that left him believing he had no other family. With that information Mr X says he had no reason before 2016 to ask for his records for he did not expect them to tell him anything more.
27. Mr X asked the Council what the law said about keeping records, what documents had the Council destroyed and what re-organisation had led to the loss or destruction of his case files. The Council explained that before the Children Act 1989 it had no duty to keep files for longer than three years after a person left care (Mr X left care in 1987). The Council said it could not find records that covered Mr X’s time in care even after asking other councils who may have taken records with them on re-organisation to search their archives.
28. The Council says had it retained records and undertaken life-story work with Mr X throughout his teenage years as it would now, Mr X would have received information including his mother’s date and place of birth. Mr X would have known more about his life history, his father and siblings.
29. The Council apologised to Mr X for failing to keep records and for the lost information they would contain about his time in care and about his family.
30. Mr X says an apology is not enough. Mr X says discovering he has a family about whom he knew nothing for over 30 years has turned his life upside down. Mr X says the delay in dealing with his complaint and providing the limited information available including his mother’s details added to the distress experienced.

Analysis- is there fault leading to injustice?

31. My role is to consider how the Council met its duty to keep and share information on Mr X’s time in council care and about his birth family. If it has acted with fault, I need to consider what impact that fault has had.
32. The law limits how far back in time the Ombudsman may go when investigating complaints. Usually he cannot go back further than about twelve months from the time the complaint is made. However, the courts have ruled we may exercise discretion and go back say three years or more depending on circumstances.
33. Historical allegations present difficulties because so much time has elapsed any investigation will be impeded by the passage of time. We cannot prove the material facts of what happened in the 1980s because there are no records to help us establish those facts with any reasonable confidence. In reaching a view we could not apply current standards, guidance or professional expectations to historical situations. Therefore, we would have difficulty in reaching a fair and firm conclusion on whether fault occurred.
34. Therefore, I cannot reach a view on what services or information the Council should have offered on Mr X leaving care in 1987.
35. Before the Children Act 1989 imposed a statutory time period for keeping records (which came into force shortly after Mr X left care) councils did not have to keep records for a long time period. However, common practice among councils was to keep those records for several years, if not decades.
36. Later legislation imposes duties to keep and share records with adopted children. The Council placed Mr X with two families as foster carers, it did not place him for adoption.
37. The Council kept some records about Mr X’s family. However, they have less information about Mr X than they do about his siblings about whom he knew nothing until 2016. This suggests historically the Council usually kept records over many years. Therefore, Mr X could reasonably expect it to have kept records about his time in care and about his family.
38. The records are not complete. It may be possible to offer some information from examining the information held on his siblings’ records, but they also may not be complete. While I cannot say even if the Council had kept all Mr X’s records, he would have answers to all his questions he would have more information than the Council can give him now. That has caused a present injustice.
39. The Council delayed its responses to Mr X’s applications for information about his birth family and his time in the Council’s care.
40. I find the Council acted with fault in failing to keep records according to its usual as well as contemporary, common and good practice. I find the Council acted with fault in sharing some sensitive information and in delaying access to Mr X’s birth mother’s details. All of which caused avoidable stress and anxiety.
41. In deciding on a recommended remedy, I cannot consider the stress caused by discovering later in life that Mr X had siblings about whom he knew nothing. This is because I cannot look back to 1987 and prove all the facts. That means I cannot make a causal link between any fault in services provided be that life story work or basic information about his family that occurred then and what happened in later life. However, I can make a causal link between not keeping the necessary records so Mr X could discover more about his birth family when he approached the Council in 2016. I also find the delay in responding to the request for information in 2016 caused distress. That is the basis for my recommendations for a remedy.
42. The remedy I recommend recognises the stress, anxiety and inconvenience caused to Mr X by the lack of those records and the delay. The lack of information the Council may share with Mr X without his siblings’ consent, means it cannot help him further in his goal of piecing together his life history. A senior officer of the Council has met with Mr X and discussed the issues and the Council believes it cannot offer any more support.

Recommended and agreed action

43. To remedy the injustice arising from the faults I have identified I recommend and the Council agrees to within four weeks of my final decision:
• Apologise to Mr X;
• Pay Mr X £1,000 in recognition of the added stress and inconvenience caused.

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Final decision

44. In completing the investigation, I find the Council at fault causing an injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman