Summary: We found fault on Miss D’s complaint about the way the Council dealt with allegations against her which it referred to the Local Authority Designated Officer. Minutes were not accurate and failed to show consideration of a recommendation. There was a failure to follow procedure with the initial allegation and it did not ensure she received its final decision. The agreed action remedies the injustice caused.

The complaint

1. Miss D complains about the Council failing to:
1. follow its own procedures when it made a referral for the Local Authority Designated Officer (LADO) to oversee allegations made about her;
2. follow the recommendation made by the police;
3. complete the referral within the correct time frame;
4. base its decision to substantiate an allegation against her on evidence;
5. tell her the outcome of the referral; and
6. provide evidence from her disciplinary hearing to the LADO.
2. As a result, this affected her professionally and caused her a great deal of stress, anxiety, and upset.

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The Ombudsman’s role and powers

3. 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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have not investigated any part of Miss D’s complaint which might touch on the Council’s disciplinary proceedings. This is because we cannot investigate a complaint if it is about a personnel issue.

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How I considered this complaint

9. I considered all the information Miss D provided, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Miss D and the Council. I considered their responses.

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What I found

Council policy: Allegations against staff or volunteers

10. There is a difference between an incident amounting to an ‘allegation’ or a ‘concern’. The procedures apply to allegations which include behaving towards a child in a way that indicates they may pose a risk of harm to children. They can be made about physical handling and restraint. Whether an incident amounts to an allegation may have to be discussed with the Local Authority Designated Officer (LADO). There may still be a role for the LADO if it falls short of the threshold.
11. The LADO needs notifying within one working day when an allegation is made before any further investigation happens.
12. The accused member of staff should be kept informed of progress and outcome of any investigation.

Council policy: Managing allegations against people who work with children

13. An allegation of harm has to be sufficiently serious to suggest harm has, or may have been caused to a child, or the behaviour alleged indicates an individual may pose a risk of harm to children.
14. The LADO role includes receiving referrals about allegations, being involved in the management and oversight of such cases, and chairing Allegation Management Meetings (AMM). They liaise with police and other agencies and monitor the progress of cases to ensure they are dealt with as quickly as possible, consistent with a thorough and fair process.
15. The LADO does not investigate allegations as this is the responsibility of the employer/police. The LADO has no decision-making role, does not communicate with the accused or alleged victims but, ensures those investigating maintain communication and are provided with relevant updates.
16. The accused has the right to reply to allegations against them. It is not for the LADO to consider the accused’s evidence directly as this is the responsibility of the organisations investigating.
17. The Managing Allegation Process is a strictly confidential information sharing process, considering all relevant information to understand the allegation. The allegation outcome is based on evidence and facts gathered from investigations. It is reached on the balance of probability.
18. It is in everyone’s interest to resolve cases as quickly as possible consistent with a fair and thorough investigation. Target times scales are: 80% of cases resolved within one month; 90% within three months; all but the most exceptional completed within 12 months. The time taken will depend on a variety of factors such as the nature, seriousness, and complexity of the investigation. The targets are to be achieved in all but the truly exceptional cases.

What happened

19. Miss D worked with ‘looked after children’. These are children who are in the care of the council for more than 24 hours. In 2021, her employer investigated a claim about her restraining a child using a non-Team Teach technique which she did not record. Team Teach was a toolkit for behaviour management which was mainly focused on understanding children’s behaviour and de-escalating challenging situations, for example.
20. Miss D denied the allegation and the Council marked it ‘no further action’. The allegation was looked at by a senior manager. I have seen a copy of the Fact Finding Report dated June which referred to interviews with two members of staff. The report stated the matter being looked into was about ‘Concerns of incidents of restraint’. Miss D noted the concerns were raised by staff, not a child.
21. The Council confirmed there was no record of any referral to the LADO who was responsible for managing allegations against adults who work with children. This was because it was dealt with informally with no further action recorded. It could not say why no referral was made to the LADO. The Council confirmed its managing allegations and Human Resources (HR) processes were not followed.
22. Miss D disputed what the Council said about the LADO. She said the LADO was on long term sick leave. This meant LADO cases were distributed among several Independent Reviewing Officers (IRO) instead who temporarily took on the role. There was no evidence of an IRO being asked about Miss D’s case.
23. Miss D said in 2022, the same allegation was referred to the LADO and investigated. She claimed it was a revival of the 2021 allegation which had been looked at. She argued another senior manager revived the complaint after the first one left. Miss D believed the motivation for this was because she had made whistleblowing allegations against the second manager.
24. The Council provided copies of statements dated March 2022 from staff who previously worked at the same location as Miss D. Two members of staff shared concerns about the restraint of children. When assessing these, the Council realised these were previously raised but had not been through HR procedures.
25. The Council said the Head of Service reviewed the 2021 information and the new statements. A referral was made to the LADO. The LADO consultation took place which recommended a complex allegations process to take place.
26. The Council suspended Miss D the same month. At this point, Miss D was told the 2021 investigation was only informal and had not gone to the LADO.
27. After consultation with the LADO, various complex strategy meetings were held until in November, the Council decided to start disciplinary proceedings. At the same time, it started LADO procedures.
28. The first AMM was heard in January 2023.
29. Miss D was dismissed following the disciplinary hearing in March. Her appeal was heard in July. The decision outcome was not changed except it decided not to dismiss her but, to offer her a change in role and a 12-month final written warning instead.
30. The second AMM was heard in April.
31. The third AMM in August took the disciplinary decision and appeal into account when it met for the final time. The Council pointed out the LADO did not decide the outcome as this was decided by those who investigated the allegation.
32. I now consider Miss D’s separate complaints:

Complaint a): failure to follow its own procedures and Complaint c): failure to complete referral within timescales

33. Miss D complained about:

• the minutes of the final LADO meeting. She said these had a member saying the allegation should be substantiated who was not recorded as being there. The Council explained the LADO confirmed she would not conclude a final meeting if the correct and required attendees were not there or, if information was missing.

The Council accepted the member was present but due to an administrative error, was not recorded as being present.

• half the final panel was made up of HR, which she considered unfair. This was because HR officers were involved in the disciplinary process which initially resulted in her dismissal.

The Council said the LADO confirmed it was normal practice for HR to be present as they represent the employer.

• the LADO looked at wider failings by the Council instead of only looking at the allegation against her.

The Council said the process involved three meetings which had to consider the whole context of how the allegations arose. There were facts involving the failings of others, so it was proportionate to consider wider failings and make recommendations. The LADO needed assurances from all services involved with children that they had acted to prevent similar allegations in the future. The Council also pointed out the first two AMM meetings were discussions only about Miss D. The minutes for the third and final AMM showed a focus on Miss D but, also looked at other matters which were considered separately.

My findings

34. I found the following:
1. There was no evidence to show the Council considered whether the 2021 concerns raised needed referring to the LADO. The Council’s own procedures stated if there was a question about whether an incident amounted to an allegation, advice could be sought from the LADO. This was fault.
2. Nor was there evidence showing how the Council decided whether the claims against Miss D were a ‘concern’ or an ‘allegation’ under its policies. This was fault.
3. On balance, I am satisfied there was an error in the recording of the minutes of the last AMM. A member was recorded as voting to substantiate the allegations but, had not been recorded as being present at the start of the minutes. This was fault.
4. I am also satisfied these failures caused Miss D an injustice in the form of distress. She lost the opportunity to have the claims properly considered according to Council policy. She had some uncertainty because of the administrative error.
5. I found no fault on the composition of the AMM panel being made up of two Council HR officers. This was because HR were present to represent the Council, her employer.
6. I am not satisfied it was fault for the LADO/AMM to consider the wider failings of the Council in the final AMM. This was because it was appropriate for the LADO to look at the wider ramifications of the allegations and failings found. I am satisfied this did not distract from the focus on Miss D’s allegations.
7. The 2022 claim resulted in many meetings and the whole process was delayed by the disciplinary process which ensured all relevant information was submitted. There was some contact initially with the LADO at an early stage.

Complaint b): failure to follow police recommendation

35. Miss D noted during the 2022 investigation, the police recommended an independent review was done by an independent local education authority social care team which was ranked as ‘Good’ or ‘Outstanding’.
36. Miss D was unhappy this was not done. The independent investigator appointed was not from an independent local education authority social care team but was chosen from its partner council (council 2). She claimed the investigator was not trained or qualified in Team Teach. The Council confirmed the LADO was trained in it.
37. Nor did she believe the Council’s own HR team followed procedure or provided accurate, balanced information to the LADO. For example, HR said the disciplinary hearing outcome was a recommendation of dismissal, but failed to add this was overturned on appeal.
38. The minutes of the first AMM stated the investigating officer was independently commissioned and set out her professional background. This officer had social worker experience, which met the requirements of the police. This information was set out in the report which also said the investigation was supported by an external HR manager. The investigation started in June 2022 alongside a police investigation with overview by the LADO.
39. The investigator’s detailed findings were set out in the AMM minutes.
40. The minutes of the second AMM showed the police confirmed the initial recommendation met. It also explained the LADO was not involved with the appointment of this officer as it was for HR to do. None of attendees of the meeting challenged the appointment.
41. The Council explained the review recommendation was met anyway by council 2 which was working with it to make service improvements. Again, the AMM raised no issue with it.
42. Miss D also claimed one of the recommendations of the first AMM was a review of Team Teach holds used and for this to be done by either an external training body or the regulatory body. The minutes for the first AMM confirmed what she said.
43. The minutes record this was to have been done the following month but there was nothing in the second AMM held in April which explained whether this had been done or if it had not been done, why. By this time, the disciplinary hearing for Miss D had been heard.
44. At stage 2 of her formal complaint, the Council said all members of the AMM received a copy of the meeting record. They had five days to challenge anything inaccurate, including actions they felt should have, or should not have, been followed. If no response was received, the meeting records were accepted as accurate.

My findings

45. I found the following on this complaint:
1. I am satisfied there was a failure to show the AMM actively considered whether the recommendation about the Team Teach review needed actioning or not. There was nothing about this mentioned in the second AMM. This was fault.
2. I am not satisfied the stage 2 response on this point satisfactorily addressed this concern. There may be several reasons why the AMM did not comment further on this recommendation. I am not satisfied omitting to make any comment on it was evidence the AMM had actively considered and come to a decision on it. This was fault.
3. I am satisfied this caused Miss D injustice in the form of distress. She lost the opportunity for the AMM to consider and decide this recommendation although it is speculative to say whether the outcome would have been any different.
4. I am not satisfied there was fault on Miss D’s complaint about the failure to carry out the recommendation by the police about the appointment of an independent review by another local authority. This was because the evidence showed the police were told at the first AMM about the appointment of the independent investigation officer, her qualifications, and the involvement of council 2. Had the police had any doubts about either, they had the chance to raise objections at the first AMM. They did not do so.
5. I am satisfied the LADO was given accurate information about Miss D’s disciplinary proceedings. This was because the minutes for the second AMM stated Miss D was dismissed following a disciplinary hearing but, she had appealed the decision. The minutes of the final AMM explained while the allegation finding remained the same, she had been reinstated on a final written warning with a change in role.

Complaint d): failure to base decision on evidence

46. Miss D claimed the independent investigator’s report said there was an absence of evidence upon which to base any conclusions. Despite saying this, the investigator supported the view to substantiate the decision against her.
47. I have read the report which stated the challenge for this case was the length of time that had passed since the incidents had taken place. It noted for most of the period concerned, there were no written records to review but the detailed statements made provided a ‘wealth of information’ to consider. The report mentioned the credibility of those who gave evidence.
48. Miss D believed the allegation was upheld not based on evidence but on hearsay. Hearsay evidence is a statement made which is, simply put, ‘second-hand’ evidence. It is evidence which: the maker of the statement did not witness directly themselves; does not come direct from the source; may be a second-hand account of what someone else had told them, for example.
49. The Council explained it was in the disciplinary process where there was an opportunity to respond to allegations and provide evidence. There were delays in the disciplinary process to ensure all information presented was considered. The Council was satisfied with the AMM minutes. These recorded the evidence presented at meetings, mitigation considered, and the decision-making criteria applied.
50. I have seen all the AMM minutes. All state ‘All information provided must be accurate and relevant. It must be made clear whether the information is fact, allegation, opinion or observation. All professional judgements must be evidence based’.

My findings

51. I found no fault on this complaint. In reaching this view, I took account of the following:
1. I considered the investigator’s report which was before the AMM as evidence. While Miss D claimed the AMM upheld the allegations based on hearsay evidence, I am not satisfied this was correct. This was because the report itself referred to accounts given by members of staff who witnessed incidents. This was not hearsay evidence but firsthand accounts from witnesses of what they saw.
2. The report noted there were no written accounts of what the witnesses saw and said at the time of the incidents. While correct, the accounts given by witnesses who said they directly saw incidents, was still evidence. What weight to give the evidence was for the AMM to decide.
3. The report noted 13 witnesses were interviewed. It accepted there was a lack of record keeping at the time of the incidents alleged, and the amount of time that passed since they happened, which created difficulties with the investigation. This was evidence before the AMM when it reached its decision.
4. The report recorded why children were not interviewed. It confirmed the officer read reports from young people and their accounts matched those given by staff on several instances. This was also evidence before the AMM when it reached its decision.
5. In response to my draft decision, Miss D challenged the evidence of the independent officer’s investigation, pointing out contradictions for example. The LADO was not responsible for conducting that investigation. The LADO’s role was to ensure the process was completed in a timely, fair, and thorough manner to ensure safeguarding of children. The LADO was an advisory role. This was not a further opportunity for Miss D challenge the evidence against her. She had the opportunity to respond to her employer about the allegations at the time, which I note she took with help from her trade union representative.

Complaint e): failure to tell her outcome of the referral

52. Miss D said she first knew the allegation was substantiated in December 2023 when she made a subject access request to the Council. She was sent a copy of a letter it had never sent her three months earlier.
53. The Council accepted there was no record of the letter being delivered to her. This letter informed her of the outcome of the investigation. It explained the member of staff tasked with sending the letter no longer worked for the Council.
54. I have seen a copy of the letter to Miss D dated 21 September 2023. This explained the outcome of the LADO managing allegations process. The letter said one of the four allegations against her was upheld.

My findings

55. I found fault on this complaint. This was because the Council accepted there was no record of the letter being delivered to her.
56. I consider the fault caused her some injustice as she was not told the outcome directly for three months which would have been a period of uncertainty for her.

Complaint f): failure to provide evidence from her disciplinary hearing

57. Miss D explained during the disciplinary process she produced more than 20 statements from staff supporting her which also cast doubt on the allegations. She argued the LADO should have had access to this evidence.
58. The Council confirmed the LADO was provided with a copy of the Disciplinary Investigation Report. It explained it was not necessary for the LADO to see all details of investigations because the role was to provide management and oversight of allegation cases. This meant the LADO did not see all the disciplinary bundle for the hearings and appeal.

My findings

59. I found no fault on this complaint. Miss D had the opportunity to respond to the allegations and case made against her during the disciplinary proceedings. The LADO process was not a rehearing of it. It was not the LADO’s role to consider Miss D’s evidence directly.

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Agreed action

60. I considered our guidance on remedies.
61. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Miss D a written apology for failing to: show it properly considered whether it needed to refer the 2021 claims to the LADO; show it considered whether these claims were an allegation of concern under its policies; show it considered whether the recommendation in the first AMM was actively considered and record the reason why it was decided not to be necessary; ensure she received the decision letter following the final AMM meeting; ensure accurate minutes of attendees of AMMs were made.
2. Make a payment of £200 for the injustice the identified fault caused.
3. Identify why no referral was made to the LADO in 2021 and ensure relevant officers are reminded of the need to consider making one in line with Council policies.
4. Remind officers of the importance of clearly recording decisions about whether a claim is a concern or allegation under its policies.
5. Remind LADO’s and relevant officers of the need to ensure recommended action from previous AMM’s are shown to have been actively considered and decided.
6. Act to ensure all those subject to LADO decisions are sent the decision promptly.
7. Remind minute takers of AMMs of the need to accurately record who is in attendance.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. On the complaint made by Miss D against the Council, we found the following:

• Complaint a): fault causing injustice;
• Complaint b): fault causing injustice;
• Complaint c): fault causing injustice;
• Complaint d): no fault;
• Complaint e): fault causing injustice; and
• Complaint f): no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman