The Ombudsman's final decision
Summary: The Council was at fault for being unable to provide Miss B with a complete record of her time in local authority care prior to her adoption. It has agreed to make a symbolic payment to recognise her injustice. It has also agreed to write to her and clarify what Council-funded services she has available to find her birth family.
The complaint
The complainant, whom I refer to as Miss B, was in local authority care from 1981 to 1982 – when she was adopted. She says the Council has given her some documents relating to her initial entry into foster care and her adoption, but nothing in between.
Miss B complains that: the Council’s files – which should cover the year she was in local authority care up to, and including, her adoption in 1982 – are incomplete. She says its failure to keep the files has frustrated her attempts to locate her birth family.
the Council agreed to try and make contact with one of her birth relatives; however, she has heard nothing about this since.
the Council mishandled her complaint.
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 provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6)) 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) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I considered information from Miss B and the Council.
I considered the following legislation relating to the retention of looked-after children’s care records: The Boarding-Out of Children Regulations 1955; The Boarding-Out of Children Regulations 1988; and The Care Planning, Placement and Case Review (England) Regulations 2010.
Miss B and the Council had an opportunity to comment on my draft decision.
What I found
What should have happened?
When Ms B was adopted, local authorities had to to keep looked-after children’s case records for at least three years after they turned 18. This was required under Regulations dating back to 1955.
These Regulations were updated in 1988, and, from that point on, authorities had to keep children’s records for 75 years after their birth (which, in Miss B’s case, will be 2055). Although the Regulations have since changed, the 75-year rule remains in place today.
What happened?
In 2017 the Council, at Miss B’s request, provided her with the information it held on her file from when she was a baby. These documents covered the period up to, and including, the Council’s initial case conference when Miss B went into local authority care in 1981.
Miss B was dissatisfied with the documents she received. She believed there should have been more. The Council contacted the County Court and asked it to provide any documents held about her adoption.
In March 2021 the County Court provided documents to the Council. This included a copy of Miss B’s adoption order and details about her birth parents.
A social worker met with Miss B and they discussed the documents. Miss B spoke about her wish to contact her birth family – something she had been trying to do on her own, with mixed success, for many years.
The social worker agreed that Miss B could provide details of her maternal grandmother (with whom Miss B had corresponded in the past), and of a further three people, one of whom Miss B believed to be her birth mother. The social worker also agreed to write to them all on Miss B’s behalf.
Miss B provided her maternal grandmother’s last known address. The social worker suggested Miss B may prefer to trace her birth parents first. She asked for their last known addresses. Miss B said the Council already had one for her father, and she did not know her mother’s.
Shortly after this, Miss B made a formal complaint to the Council. The Council passed the complaint to an independent investigator. However, the investigator felt that – as most of the complaint was about missing files which the Council had already confirmed it could not find – he would be unable to achieve anything.
The investigator suggested that the Council write to Miss B directly. Miss B and the Council agreed to this, and she made a separate Data Protection Act complaint about the missing files.
The Council responded to Miss B’s data complaint, but said there was no evidence that any additional records had ever been lost, destroyed or compromised. Because of this, the Council did not agree that a data breach had occurred.
The Council then wrote to Miss B about her original complaint. It apologised for delays in dealing with her complaint, and offered to: arrange a meeting between Miss B and senior adoption managers if she wanted one; use its usual company to try and trace Miss B’s birth family, or pay for Miss B to use another company; and consider reimbursement of some of the costs she has incurred trying to find her birth family over a number of years, if she can provide evidence of expenditure.
Miss B did not want to attend a meeting, but says the Council told her she had to attend one if she wanted to discuss reimbursement of her costs. She did not take up the Council’s offer of tracing.
The Council says its offers still stand.
My findings
The Council should have kept Miss B’s care records until 75 years after her birth. Although it sent her everything it has, and says there is no evidence there were ever any other documents on her case file, it is unlikely that no records were created at all during the year she spent in local authority care. It is more likely that those records have simply been misplaced or destroyed in the 40 years since she was adopted. This was fault by the Council.
I cannot say, as Miss B has, that the lack of records has frustrated her attempts to find her birth family, because there is no way of knowing what would have been in the records if they existed. But the Council should provide her with a symbolic remedy to recognise that its failure to keep records is likely to have caused her avoidable distress.
The way the Council dealt with Miss B’s complaint is likely to have caused her some confusion. However, she did get responses from the Council and was able to bring her complaint to the Ombudsman afterwards. The Council has already apologised for delays. Miss B has no remaining injustice which is significant enough to justify any further findings on this point.
Although Miss B is correct that the Council did not contact her maternal grandmother after agreeing to in March 2021, it subsequently offered a broader package of ‘tracing’, and it believed contacting Miss B’s grandmother would be part of that. Miss B, who did not pursue the tracing, believed the Council would still write to her grandmother.
This was a misunderstanding between Miss B and the Council. Although I do not consider the Council at fault for this, it may be of benefit to Miss B if the Council would now write to her and clarify what is on offer to her with regard to tracing and reimbursement.
Agreed actions
Within four weeks of this decision, the Council has agreed to write to Miss B and apologise for not being able to provide a complete record of her time in local authority care.
When it writes its apology to Miss B, the Council has also agreed to clarify: what options are available to her for Council-funded tracing (either with the Council’s usual service or another one); how she can go about seeking reimbursement of costs she has previously incurred trying to find her birth family; and whom at the Council she can talk to about these matters.
Within six weeks, the Council has agreed to make a payment of £150 to Miss B to recognise her avoidable distress from its failure to keep a complete record of her time in care.
Final decision
The Council was at fault for being unable to provide Miss B with a complete record of her time in local authority care prior to her adoption. The agreed actions remedy her injustice.
Investigator's decision on behalf of the Ombudsman