The Ombudsman's final decision
Summary: Mr B complained the Council was biased against him when considering safeguarding concerns relating to his daughter. He also complained about its social worker’s conduct and failure to communicate with him as agreed, and a breach of his data rights. The Council agreed its social worker failed to communicate as agreed and apologised. This was enough to remedy the injustice this caused him. We found no fault on the other matters complained about, or we could not investigate as a court or other body had already considered the issues.
The complaint
The complainant, whom I shall refer to as Mr B, complained the Council: wrongly allowed a data breach in 2019 and failed to share information about the breach with him; wrongly found its social worker had not breached its policy when she met with Mr B’s ex-partner (Mrs X) and provided advice about ongoing contact proceedings regarding his daughter; wrongly investigated repeated anonymous safeguarding concern against him, and failed to listen to him and his concerns; failed to investigate and acknowledge sexism within its Social Services team; failed to communicate with him in an assessable format as agreed and failed to provide enough help to refer him to the Ombudsman.
As a result, Mr B said he had experienced distress and uncertainty.
The Ombudsman’s role and powers
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
If we are satisfied with an organisation’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)
How I considered this complaint
As part of my investigation, I have: considered Mr B’s complaints and the Council’s responses; discussed the complaints with Mr B and considered the information he provided; considered the information the Council provided in response to my enquiries; considered the law, guidance and Council policy relevant to the complaint.
Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative background The 1989 Children Act and Working Together to Safeguard Children The Act and its guidance (Working Together to Safeguard Children) says anyone who has concerns about a child’s welfare should make a referral to children’s social care. When a council receives a referral, the law requires it to take action to find out more, if it has reasonable cause to suspect that a child is suffering, or likely to suffer, significant harm or neglect.
Councils carry out assessments in liaison with safeguarding partner organisations. A council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools and nurseries. The information gathering at this stage enables a council to assess the nature and level of any harm the child may be facing. Outcomes can include that no further action is needed, provision of family support, that a child is in need, or that there are child protection concerns.
The guidance says data protection law and Regulations do not prevent information sharing that is needed for the purposes of keeping children safe. And: “It is not necessary to seek consent to share information for the purposes of safeguarding and promoting the welfare of a child provided that there is a lawful basis to process any personal information required. The legal bases that may be appropriate for sharing data in these circumstances could be ‘legal obligation’ or ‘public task’ which includes the performance of a task in the public interest or the exercise of official authority.”
If the result of an assessment is that a child is in need, a council will provide support through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. A child is in need if: they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; their health or development is likely to be significantly impaired unless the council provides support; or they are disabled.
Background
Mr B has a daughter (Y) and shares parental responsibility with his ex-partner, Mrs X.
Since their separation Mr B and Mrs X has had a poor relationship. In 2018 Mrs X made allegations against him, which temporarily resulted in his contact with Y stopping.
Y has had behaviour issues, which has led to issues within her school.
The Council has assessed Y’s needs and found her to be a child in need (CIN). It sought the views of Mr B and Mrs X and put a CIN Plan in place.
What happened In summer 2021 Y was excluded from her School. This resulted in an incident in which she said Mr B had grabbed her arm and chucked her on the floor. She reported she had marks to her arm and leg, and a bump to her head.
Mr B disagreed about the events of the incident and Y’s injuries.
The Council held a strategy meeting and found further enquiries should be made and jointly investigated with the Police. It found the concerns were substantiated, but Y was not found to be at continuing risk of harm. This was partly due to Y retracting her complaint to the Police and Mr B apologising. Y went to live with Mrs X full time.
A Court ordered the Council to prepare a report and subsequently considered Mr B’s and Mrs X’s contact arrangement with Y.
Mr B’s complaint In 2021 Mr B complained to the Council. He said: his ex-partner had wrongly accessed information about him in 2019 on the Council’s Children Services system, which she had access to through her employment with a service linked to the Council. This information contained allegations against him which led to his ex-partner stopping him from seeing Y; and The Council had not properly considered his views and failed to take his dyslexia into account when communicating with him.
In response the Council found it had considered Mr B’s views throughout regarding allegations made and contact arrangements. It also found its social worker had properly understood the need to provide correspondence in an accessible format for Mr B. However, its investigation found information about Mr B had been accessed on two occasions without authority in 2019. As the individual was no longer working for the Service it referred the matter to the Information Commissioner (ICO).
The Council made recommendations to prevent data breaches in future which included inductions for new staff, managers should lockdown records if staff knows a service user, compliance officer should carry out compliance checks, and reminders for how social care staff should raise data protection concerns.
In Summer 2021 Mr B complained to the Council again. He said: its social worker had taken almost 4 months to send communication in an accessible format as agreed, and she had continued to send text messages which were not accessible to him; Y had told him another Council social worker had met with his ex-partner during work hours and provided advice regarding his contact arrangements case for Y which was due to be considered by the court. He questioned if this was allowed and what information had been exchanged; and he believed the Council’s Children Services department was sexists as most cases resulted in the mother obtaining custody and the majority of staff were female. He felt the social worker allocated to Y’s case had not listened to him properly and had been biased towards Mrs X.
In response the Council told Mr B it found: its social worker had failed to send communication to Mr B in an assessable format as agreed, and apologised. It said it had reminded the social worker and her manager of Mr B’s preferred communication method; it was not at fault for its social worker meeting with Mrs X. This was because the social worker was not allocated to Mr B’s case and it did not have a policy, or a code of practice, which prohibited its staff advising people on open cases. Also, its compliance check found Mr B’s case had not been accessed by the social worker; and its social worker had considered Mr B’s and Mrs X’s views and treated them equally. It explained Y interest comes first and its social worker was entitled to form her view. The fact Mr B did not agree with this did not mean he was not listened to.
Mr B was not satisfied with the Council’s response, as he felt it had not properly addressed his concerns regarding sexism in the Social Services department, and it had not given him the details of the person who accessed his data unlawfully. He said there had also been delays in the process. He also said the social worker breached the code of conduct for social work so his complaint should be upheld, and it had failed to help him with a referral to the Ombudsman.
The Council did not change its view, but it explained it would not respond to Mr B’s sexism claims as this would be a disproportionate burden on the Council and it found Mr B and Mrs X had been treated equally. It also said it had consulted with the Ombudsman to ensure providing our contact details were enough.
In late 2021 the ICO found there had been an unlawful breach of Mr B data, However, it was satisfied with the actions the Council had taken, which included referring the concerns to the ICO and putting steps in place to prevent recurrences of such incidents.
Analysis Data breaches and freedom of information requests The Council agreed a breach of Mr B’s data had occurred in 2019. It referred the matter to the ICO for its consideration. This was the appropriate step for the Council to take, and the ICO has since reached its view on the matter. I cannot therefore consider this further.
Mr B also said there had been delays in his requests for information. Such matters should be brought to the attention of the ICO, which is the appropriate body to consider such complaints.
Social worker’s meeting with Mrs X Mr B said the Council’s social worker should not have met with his ex-partner to discuss the contact and custody case for Y outside her official Council role.
I have not found the Council at fault for the actions of its social worker. This is because: the social worker was not allocated to Mr B case regarding Y and its investigation found she had not accessed the case on the Council’s system; the Council does not have a policy which prohibits its social workers from meeting people they know outside of work, or during lunch breaks; and the social worker no longer works for the Council. It is therefore not possible to gather further evidence, or for it to take any further action.
I acknowledge Mr B’s concerns about the social worker’s conduct considering she met with Mrs X and discussed an open case. Such matters should be brought to Social Work England for its consideration.
I understand Mr B was concerned about how this impacted the custody and contact arrangement of Y. However, as this has been considered by the court and a Child Arrangement Order has been made. I cannot consider this matter any further.
Council’s handling of safeguarding concerns and Mr B’s views Mr B said he felt the Council and its social worker wrongly considered anonymous allegations of concerns about his or Y’s behaviour, which led to continued involvement from its Social Services. He said during the process it failed to properly listen to his views and concerns, and was biased towards Mrs X.
I cannot by law question the merits of the Council’s decisions absent a finding of procedural fault. This is because decisions are best made by those exercising professional judgement. My role is therefore to assess whether the Council has followed the correct child protection procedure and considered the views of all of those involved to reach a reliable and well-informed decision.
On receipt of a child protection referral or concern, the Council should assess any information provided to determine whether any formal safeguarding action should be undertaken or continued.
I understand Mr B believes Mrs X’s or anonymous reports about Y’s welfare was treated differently to his views or concerns. However, I have seen no evidence this was the case. The evidence shows the Council has considered the information it has received regarding Y, Mr B and Mrs X throughout the process. This included Child in Need meetings, strategy meetings, and the safeguarding investigation in 2021 which led to further enquiries. I have therefore not found the Council at fault, as it reached decisions it was entitled to make.
Also, I cannot investigate Mr B’s complaints about how the Council dealt with Mr B’s contact with Y or the contents of reports, because these are about matters that have been considered by a court.
The Ombudsman’s Guidance on Jurisdiction says that ‘the preparation, collation, and analysis of evidence, including reports written by social workers or other officers for court proceedings (or the use of a report written previously, in subsequent court proceedings) and evidence given by council officers in any proceedings’ are conduct of court proceedings. As such these matters are outside the Ombudsman’s jurisdiction and we cannot investigate.
Accessible communication The Council agreed its social worker had failed to communicate with Mr B over a four-month period through agreed method which would be accessible to him. It explained its social worker had misunderstood his needs and apologised.
This was fault, which caused Mr B some frustration due to the time and support he subsequently needed to access emails and text messages. I found the Council’s apology was enough to remedy the injustice this caused. It also took appropriate steps to ensure its social worker was aware of Mr B’s communication needs and reminded staff of the importance of ensuring communication with services users are through means which were accessible to them.
I understand Mr B also wanted the Council to refer his complaint to the Ombudsman. I have not found the Council at fault for refusing to refer Mr B to us. This is because it would be inappropriate for the Council to refer a complaint made against it to us. Also, the Council provided Mr B with our contact telephone number and information to our website, which would be accessible to his needs.
Final decision
There was no fault on the substantive matters complained about, however, there was fault in how the Council communicated with Mr B. It has already remedied the injustice this caused. It is on this basis I have completed my investigation.
Investigator's decision on behalf of the Ombudsman