Summary: Mr B says the Council’s designated officer for allegations failed to properly oversee the allegation management process, failed to ensure the process was fair and evidence based, failed to ensure the decision was properly reached and delayed telling him the outcome of the process. There is no evidence of fault in how the Council managed the process but there was fault in delaying issuing the decision and including some incorrect information in the decision letter. An apology is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to properly oversee the allegation management process;
• failed to ensure the process was fair and evidence-based;
• failed to ensure the decision was properly reached; and
• delayed telling him the outcome of the process.
2. Mr B says this has resulted in serious hardship and distress to him and his family. Mr B also says he has lost his employment as a result and forced him to alter his career direction.

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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 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)
5. 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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What should have happened

8. Working Together to Safeguard Children August 2018 says local authorities should have clear policies for dealing with allegations against people who work with children.
9. An allegation may relate to a person who works with children who has behaved in a way that puts them at risk of harm or which indicates they may not be suitable to work with children.
10. Local authorities should have a designated officer for allegations (DOFA) who is involved in the management and oversight of allegations against people who work with children.
11. The Council’s DOFA practice standards (the practice standards) makes clear it is the role of the employer, not the DOFA, to undertake any investigation and liaise directly with the employee or volunteer as well as provide any necessary support.
12. The practice standards say there are five standard outcomes to the DOFA process:
• substantiated: there is sufficient evidence to prove the allegation;
• malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive;
• false: there is sufficient evidence to disprove the allegation;
• unsubstantiated: there is insufficient evidence to either prove or disprove the allegation;
• unfounded: there is no evidence of proper basis which supports the allegation being made.
13. The practice standards say following the conclusion of the process those subject to allegations should be written to with the outcome within 5 working days of the meeting where this was agreed.
14. The Council’s frequently asked questions document (FAQ document) says following receipt of an allegation an initial evaluation meeting is held with subsequent multiagency allegation management meetings (MAMM) at regular intervals.
15. The FAQ document says the person that is the subject of the allegation is not able to attend those meetings and any account he or she wishes to offer or any evidence or representations they want to make in respect of the allegations should be made to the employer.
16. The FAQ document says the process will be conducted in a fair and timely manner to ensure it is fair and all parties views including the person that is the subject of the allegations are represented and shared as part of the investigation undertaken by the police, social care and the employer.
17. The FAQ document says after the investigation has concluded there will be a final MAMM where there is an agreed outcome based on the evidence shared. It says the MAMM is not a disciplinary or investigative panel and does not make a finding or determine an outcome about any one or more of the individual allegations. Rather, based on the evidence and the outcome of the investigation the participants and the DOFA have to decide an outcome in respect of whether the person that is the subject of the allegation has:
• behaved in a way that has harmed a child, or may have harmed a child;
• possibly committed a criminal offence against or related to a child;
• behaved towards a child or children in a way that indicates he or she would pose a risk of harm to children; or
• behaved or may have behaved in a way that indicates they may not be suitable to work with children.
18. The FAQ document says the outcome decision is based on the balance of probability rather than beyond all reasonable doubt. It makes clear this means there could be an outcome of substantiated from this process even if a criminal investigation is closed as no further action or the person is found not guilty at trial.
19. The FAQ document says the person that is subject of the allegations can expect to be supported by their employer and if they do not feel they are getting support they can raise this with the DOFA who will address it with the employer.

What happened

20. Mr B was teaching at a school. In November 2021 one of Mr B’s pupils raised concerns about Mr B’s behaviour. The school reported those concerns to the Council. An initial evaluation meeting took place. The meeting decided to arrange a MAMM. Mr B says he had already resigned his position at the school sometime before the allegation was made as he was moving areas.
21. The first MAMM took place on 8 December. The meeting was notified the police would not be investigating and therefore the school, as the employer, would investigate.
22. The Council wrote to Mr B on 22 December to tell him his employer would begin an investigation. The Council explained its DOFA would oversee the investigation. The Council told Mr B he could not attend the MAMM’s but should provide any comments or evidence to his employer. The Council told Mr B the MAMM process was not a disciplinary or investigative panel and would not make a finding or determine an outcome about any one or more of the individual allegations. The Council explained at the final meeting there would be an outcome, referring to the bullet points in paragraph 17 of this statement and listed the potential outcomes. The letter explained if Mr B did not feel he was receiving support from his employer during the process he should contact the DOFA service.
23. A final MAMM took place on 15 February 2022. Mr B’s employer informed the meeting it had concluded there was gross misconduct. The majority of members of the meeting decided to substantiate the allegation. This was a provisional finding pending the outcome of any appeal against the disciplinary proceedings.
24. On 8 March the school told the Council Mr B’s appeal against the disciplinary action was unsuccessful and the panel had upheld the finding of gross misconduct due to safeguarding breaches.
25. The Council wrote to Mr B on 19 April to tell him about the outcome of the allegation management process. By that point Mr B had resigned and moved to a different area and job.

Analysis

26. Mr B complained the DOFA failed to ensure the correct process was followed when considering the allegations and failed to give him an opportunity to give his views on what happened. I am satisfied though the DOFA was not responsible for conducting the investigation. That was Mr B’s employer’s role. I am satisfied the Council told Mr B his employer, rather than the Council, would seek Mr B’s views. I am satisfied the Council also told Mr B if that did not happen he could contact the DOFA. There is no evidence Mr B did that and it is clear he had the opportunity to input into his employer’s investigation. That investigation itself though falls outside the Ombudsman’s jurisdiction as the Ombudsman does not have jurisdiction over the actions of school. Nor can we consider disciplinary processes. If Mr B had concerns about the way the school conducted the investigation he will need to raise those with the school directly.
27. It was not the MAMM’s responsibility to investigate the allegations. Mr B’s employer has already completed the investigation. The role of the MAMM was to decide whether the concerns should be substantiated. It is not my role to comment on what was said by those that took part in the multiagency meeting as the Ombudsman only has jurisdiction over the Council’s actions. Mr B has raised concerns about the accuracy of information presented to the meeting and whether the members of the meeting properly understood what they were being asked to substantiate. Mr B says the DOFA should have intervened during the meeting to ensure the relevant matters were taken into account.
28. Having considered the minutes of the meeting which decided to substantiate the allegation I have found no evidence to suggest members of the meeting raised concerns during it about what they were being asked to consider and the test they were being required to apply. Rather, the minutes of the meeting show most members of the meeting felt able to put forward a view on whether the allegation should be substantiated. I would only have expected the DOFA to intervene if there had been a clear lack of understanding about what the meeting were being asked to do. As there is no evidence members of the meeting failed to understand their responsibilities I have no grounds to criticise the Council.
29. In reaching that view I am aware Mr B has provided letters from two members of the meeting. Both letters were sent to the Council after the final MAMM. Both raise concerns that members of the meeting were not advised about the tests they needed to apply. It may well be those members do not feel they had sufficient understanding of the purpose of the meeting. However, I am satisfied neither of those members voted to substantiate the allegation. I therefore do not consider that affected the outcome. As I said in the previous paragraph, there is no evidence from the minutes of the meeting to suggest the members that voted to substantiate the outcome had any uncertainty about what they were being asked to consider.
30. I understand Mr B’s concern about the meeting only receiving information from his employer and I note he believes his employer was there to represent the pupil. That is not accurate though. The employer’s role was to report back the findings of its investigation, which is what it did in this case. That is not fault. Nor is it fault for Mr B not to have a voice at the meeting. Indeed, the Council was clear with Mr B he could not take part in the meeting and that the Council’s role was not to investigate. Instead, Mr B’s involvement came during the employer’s investigation of the allegations made.
31. Mr B also notes the police decided there were no criminal matters to pursue and did not make any disclosure to DBS. Mr B also notes DBS decided to make no changes to his registration. Mr B points to those decisions as contradicting the decision to substantiate the allegations. While I understand Mr B’s concern, the police apply a different standard of proof when considering criminal allegations as compared to the consideration by the MAMM. In a police investigation the standard of proof is beyond reasonable doubt. For the MAMM the standard is balance of probability. It is therefore possible for an allegation to be substantiated when the police have decided not to pursue a criminal investigation. The police decision about whether to make a disclosure to DBS is also a separate process. It is not fault for the MAMM to decide to substantiate an allegation when the DBS has decided not to change a registration, if the police decide not to prosecute or if the police decide not to make a disclosure to DBS. I have found no evidence of fault in the process by which the decision to substantiate was reached.
32. Mr B has suggested the decision to substantiate the allegation was flawed because his employer did not tell the meeting 11 of the 14 allegations made by the pupil had been dropped. I am satisfied the Council was clear with Mr B the process would not reach a finding on each allegation and instead there would be one overall decision. In addition to that, there is no evidence in the minutes from the meeting that decided to substantiate the allegation to suggest members were influenced by the number of allegations made. I therefore do not consider there is evidence of fault here.
33. The Council was at fault for delaying telling Mr B about the decision. The Council is supposed to send Mr B a decision letter within five working days. The Council failed to meet that timescale in this case. The decision to substantiate the allegations was made on 15 February 2022 and the Council did not tell Mr B about that decision until 19 April 2022. Failure to meet the five day timescale is fault.
34. There is also an issue about some of the information included in the letter telling Mr B about the decision. In that letter the Council says:
• ‘Given that you have been dismissed/moved to another role…’
35. As Mr B has identified, this statement is inaccurate as he was neither dismissed nor moved to another role as he resigned before the employer’s process was completed. I note the employer indicated had he not resigned Mr B would have been dismissed. However, the wording in the Council’s letter is still inaccurate and that is fault. I consider an apology a satisfactory remedy both for the delay issuing the final decision and for including incorrect information in the final decision.

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Agreed action

36. Within one month of my decision the Council should apologise to Mr B.

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Final decision

37. I have completed my investigation and find fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman