The Ombudsman's final decision
Summary: We will not investigate this complaint about a safeguarding referral involving Ms X and the Council’s subsequent actions. This is because the complaint does not meet the tests in our Assessment Code on which complaints we investigate. There is not enough evidence of fault and other agencies are better placed to consider the complaint. More importantly, we cannot achieve the outcomes Ms X wants, and an investigation would be unlikely to lead to a different result.
The complaint
The complainant, whom I shall refer to as Ms X, complained a council employee (Y) made a malicious referral about her ability to care for her grandchildren. This led to a call to Ms X’s employer and contact with the Disclosure and Barring Service (DBS). Ms X says this has affected her ability to work. Ms X is unhappy with the conduct of Y and of one their relatives (Z) outside of their work with the Council. Y and Z are social workers. Ms X is unhappy with how the Council has dealt with her requests for information about the referral. Ms X wants Y and Z disciplined and compensation for loss of earnings.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The Information Commissioner's Office (ICO) 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.
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) We cannot investigate complaints about actions which are not the administrative function of a council. (Local Government Act 1974, section 26(1) as amended).
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Ms X’s complaint for the following reasons.
Ms X says the referral was anonymous. It is unlikely we could ever establish who made the referral or if it was malicious.
The Council has a duty to safeguard children in its area. It is unlikely we would criticise the Council for acting on a referral it received – anonymous or otherwise.
If Ms X believes the Council has not properly responded to her Freedom of Information requests, this is something for the ICO. It is the body set up by Parliament to consider such matters. It has far wider powers than the Ombudsman to act if it decides a body has failed in its role as a data controller. It is the appropriate body to consider this part of Ms X’s complaint.
Any decisions taken by Ms X’s employer, or the DBS, are not matters for the Ombudsman.
The Ombudsman investigates councils as corporate bodies. We do not investigate the actions of individuals and their conduct outside work. We cannot say if a council should take disciplinary action against its staff. We cannot therefore achieve what Ms X wants.
The Ombudsman does not award compensation. That is instead a matter for the courts. Again, we cannot achieve the outcome Ms X wants. If Ms X wants compensation, then it is reasonable for her to pursue the matter in court.
Social Work England is the regulatory body for social workers in England and can consider complaints about social workers and their fitness to practise.
Final decision
We will not investigate Ms X’s complaint because: There is not enough evidence of fault by the Council.
Other agencies are better placed to consider the complaint.
We cannot achieve the outcome Ms X wants, and an investigation would be unlikely to lead to a different outcome.
Investigator's decision on behalf of the Ombudsman