The Ombudsman's final decision
Summary: Mr Y and Mr and Mrs X complain about the actions of Council staff members, which they feel were racially motivated, and about the Council’s complaints handling. The Council had accepted fault and offered a financial remedy before the Ombudsman’s involvement. It has agreed a further financial remedy and apology.
The complaint
The complainants, who I refer to here as Mr Y and Mr and Mrs X, complain that: The has been no investigation into their over-arching complaint that their poor treatment was racially motivated. They would like an independent investigator with expertise in race discrimination to examine what happened and make a finding on whether the family suffered race discrimination; The Council has still not fully accepted responsibility for its actions and has attempted to pass responsibility to the independent investigator of their complaint. The complainants would like an independent investigator to consider the Council’s response to the investigator’s report and consider whether the Council acted appropriately in initially rejecting some of his findings and criticising him in its final letter; and The remedy offered to Mr Y is inadequate.
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) 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)
How I considered this complaint
I spoke to Mrs X and considered information provided by Mrs X and the Council. I shared this draft decision with both parties and considered their comments before finalising my decision.
What I found
Mr and Mrs X are the parents of Mr Y and grandparents of Mr Y’s son G. In 2019 the Council assessed Mr and Mrs X as carers for G, who was in local authority care after being removed from his mother due to child protection concerns. Following the assessment, the family court ordered that Mr and Mrs X should care for G. Mr and Mrs X and Mr Y then made a number of complaints about the way they were treated by Council staff during the assessment and court proceedings.
Their complaints were investigated under a three-stage statutory process for complaints about children’s services. Most of the complaints were upheld or partially upheld at Stage 2 by an independent investigator. The Council did not accept all of the investigator’s recommendations but apologised for the actions of one social worker and for its complaints handling. It offered Mr and Mrs X £5,000 to remedy the faults found.
The family asked for the complaint to be escalated to Stage 3. The Stage 3 panel upheld the independent investigator’s findings. The Council accepted the Stage 3 panel recommendations. It repeated its apology and offer of £5,000 to Mr and Mrs X. It made further apologies and an offer of £1,000 for faults relating to Mr Y.
In its final letter the Council also apologised for the independent investigator’s work, which it said was not to its usual standards. The letter said there were failings in the investigator’s analysis of evidence and gaps in his triangulation of that evidence and that the Council had taken action to avoid this situation arising in future.
The family then came to us with the following complaints: A) Racism While the majority of their complaints have been upheld they felt there had been no investigation into their over-arching complaint that their poor treatment was racially motivated. Their view is that they were stereotyped and discriminated against as a black family. They asked for an independent investigator with expertise in race discrimination to examine what happened and make a finding on whether the family suffered race discrimination.
In response to my enquiries the Council pointed to a section in the independent investigator’s report. The section stated: “[Mr and Mrs X] used the words racial profiling within their complaints, staff have indicated to me that is possible that this would have been [Mr Y’s] experience.” The investigator concluded: “I would support this view based on the information ascertained as part of this investigation. However, I do not believe this is common practice, nor do I believe that the Department would support such behaviours had it been aware of [the social worker]’s views. The Department in my opinion acted appropriately once it became aware.” The investigator also pointed out the social worker had been challenged by a colleague and that the Council had taken disciplinary action.
Analysis There is insufficient evidence to suggest there would be a change in outcome, should a further investigation be conducted. The complaints made by the family have already received independent scrutiny at both Stage 2 and Stage 3 of the statutory complaints procedure. The complainants provided their views to the Stage 3 review panel. Neither the chair of the panel nor the other panel members considered it necessary to propose further investigation.
B) The Council’s actions with regards to the independent investigator The complainants feel the Council has still not fully accepted responsibility for its actions and has attempted to pass responsibility to the independent investigator. They have heard from the investigator who disputes the Council’s version of events. They say that they had confidence in the investigator and that the Council’s actions with regards to him have further undermined their confidence in the Council. They note that the investigator is a black man and question whether the Council’s failure to accept his report is a further instance of racial discrimination.
The complainants would like an independent investigator to consider the Council’s response to the investigator’s report and consider whether the Council acted appropriately in initially rejecting some of his findings and then criticising his report in its final letter.
In response to my enquiries the Council said the investigator had told the Stage 3 panel he had not been provided with certain legal documents as part of his investigation. The Council said a review of the case following the panel hearing found the investigator had been sent these documents. The Council said it felt Mr X may have arrived at different conclusions with regards to some parts of the complaint if he had considered these documents.
Analysis The Council has apologised for the faults identified at Stage 3 and has explained its actions with regards to the investigator. While the investigator may dispute the Council’s account I will not investigate further as there is insufficient evidence of personal injustice to Mr and Mrs X and Mr Y.
While I do not make a finding of fault, in my view the Council’s communication with the family on this matter was poor. It was confusing for the family to receive a letter criticising the investigator and elements of his report without providing a basis for these criticisms when the investigator’s findings had been upheld at Stage 3.
C) Financial remedy The complainants state that the remedy offered to Mr Y is inadequate. They point out that the £5,000 offer for maladministration was made to Mrs X and her husband (ie £2,500 each) while £1,000 was offered to Mr Y for distress relating to additional matters. The complainants point out that Mr Y was also affected by the maladministration that affected Mr and Mrs X and yet has not received a remedy for this. They would like this position rectified. They also complain about the delay in offering any remedy to Mr Y despite this being recommended at Stage 2.
The Council has accepted this and has agreed to offer Mr Y the same remedy as each of his parents – £2,500 - on the basis that he has suffered the same distress and has been similarly affected by the maladministration involved in the case. The Council has also offered a further apology for the delay in making this offer.
Analysis The family feels this remedy is inadequate given the distress they have suffered. However the sum is line with the Ombudsman’s guidance on remedies and in my view it is appropriate.
Agreed action
Within one month of my final decision the Council will: Pay Mr Y £2,500 to remedy the distress caused by its maladministration; and Apologise to Mr Y for the delay in offering this remedy.
Final decision
I have completed my investigation with a finding of fault, which had already been accepted by the Council. It has agreed an enhanced financial remedy and an apology.
Investigator's decision on behalf of the Ombudsman