Summary: Mr B complained that the Council gave incorrect and misleading information about child welfare records relating to his time at a school in the area where he says he was abused. The Council also delayed in dealing with his complaint about the matter and failed to respond adequately to it. We found fault with the Council’s actions. The Council has agreed to apologise to Mr B, pay him £250 and give him a written response to one outstanding issue.

The complaint

1. Mr B complained that Middlesborough Council (the Council) gave misleading and incorrect information about the existence and whereabouts of child welfare records relating to Mr B’s time at a school in the area, where he says he was abused. The Council has also delayed in dealing with his complaint and failed to respond adequately to it. One of the officers he complained about has responded to his complaint, which he thinks is wrong. This has caused Mr B a significant degree of distress and frustration which has exacerbated the ongoing trauma of his experience.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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.

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What I found

Council complaints procedure

7. The Council, prior to the COVID19 pandemic, operated a two stage complaints procedure. During the pandemic it introduced a temporary single stage corporate complaints procedure. This was in force from 1 April 2020 until 14 October 2022.

Good Administrative Practice during the response to COVID19

8. We have published guidance on good administrative practice since 1993 to show the standards we expect when we investigate the actions of local authorities. We produced an addendum in May 2020 following the pandemic. It includes the following principles:

Being Service-user focused

9. Where new or adapted policies and procedures are brought in, ensure frontline staff are clear about any new expectations so they give the right advice to service users.

Being open and accountable

10. The basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent. Any new criteria, thresholds and timescales should be clear to service users and staff.

Putting things right

11. Delays and deviations from processes are understandable at this time. Make sure you can explain the reason for any delay or deviation from a process to the complainant, and you have documented your reasons.

Background

12. Mr B attended a school in a different council area in the 1960s, where he says he was abused. He is a member of a group of survivors (the Group) from the school, which has since closed. Mr B gave evidence to the Independent Inquiry into Child Sex Abuse (IICSA) which was a national wide-ranging inquiry and not led by the Council. Two officers at the Council (Officer Z and Officer Y) were the main officer contact between the IICSA, the Council and the Group.
13. Originally the school was under the control of the Home Office. There have been several changes of responsibility for the legacy issues of the school over the years, due to local government reorganisation. The briefing said that when the school closed some information was returned to the Home Office and any files were returned to the predecessor authorities.
14. Some civil claims have been made against the Council. Those relating to sexual abuse have never progressed due to a lack of evidence and limitation issues.
15. Mr B and other members of the Group have been actively seeking evidence from the Council and other sources to support their claims.
16. IICSA concluded that most victims, rather than compensation, wanted an acknowledgement of what they had been through and an apology. It had suggested local authorities with claims of this nature should consider setting up a financial redress scheme, which could acknowledge the abuse and compensate claimants to some degree.
17. After the inquiry the Group wrote to the Council requesting a public apology and a redress scheme.

What happened

18. In February 2021 Officer Z gave a briefing on the situation to a meeting of a group of five local authorities in the area. The Council has been unable to provide a copy of the briefing on that date The minutes were taken by a different council.
19. The minutes of the meeting record that Officer Z said the Home Office had the school’s records and they were covered by the Official Secrets Act. He also said the Council had no idea who attended the school so how could they establish who to pay. The Council says it has not been possible to confirm attendance at the school for all those in the inquiry.
20. The Council has provided a copy of a presentation dated 25 March 2021 and entitled ‘All Members Briefing’. This sets out the background to the cases, the role of IICSA and the suggestion that the authorities could set up a financial redress scheme. The briefing recommended that it was not possible to set up a financial redress scheme and the cases would continue to be approached from a legal perspective.
21. The minutes of a second meeting of the five authorities on 30 March 2021 say that Officer Z said a full update had been provided to Members of the Council and that Officer Z would circulate a paper and presentation to the combined authorities group.
22. In June 2021 the Mayor of the Council held an online briefing with the Group to provide an update on the situation. Officer Z was present. He explained that the Council did not have many records relating to the school but in February 2021 it had discovered a microfiche with some records from the 1970s. The records were being sorted through and the Council would share them with individuals when this process was complete to ensure third party details were not disclosed.
23. Mr B questioned Officer Z on the records held by the Home Office (these were separate to the microfiche documents found in February 2021). He said they weren’t held under the Official Secrets Act and they were examinations of school buildings not personal records.
24. Mr B raised what Officer Z had said at the meetings with other councils in February and March 2021 regarding the Official Secrets Act and the lack of evidence to prove anyone had actually attended the school. Other members of the Group said they had evidence to prove they had been abused at the school and the evidence had been provided to the Council and IICSA. Mr B said the Council did not want to speak to him about it or answer his correspondence.
25. He and other members of the Group also said the Council had records to show they had been at the school and had been abused. Another Council officer said that he didn’t think there were any doubts about whether members of the Group had been at the school. The Mayor emphasised that no one present from the Council had any reason to doubt anything anyone had said. The Council in response to a draft of this decision reiterated that ‘there are no records or documented evidence held to confirm abuse had occurred’.
26. Officer Z apologised for his misunderstanding of the controls on the Home Office records and agreed the records were not subject to the Official Secrets Act. Mr B said that he had already wrongly informed the other councils that the information was subject to the Official Secrets Act which could affect their willingness to disclose anything else. Officer Z did not respond to this due to another issue being raised. Mr B also challenged Officer Z for saying in the minutes that the Group was mounting a ‘political attack’. Officer Z replied that he described it as a ‘political campaign’ in that minute because he meant members of the Group were contacting politicians.
27. In late October 2021 Mr B made a formal complaint about the words of Officer Z during the meetings in February 2021. Mr B did not think the Council had properly acknowledged that what Officer Z had said was wrong or the impact this may have had on others releasing information and neither had it given a proper apology. He said Officer Z should have told the meetings that the Council had found some further microfiche documents but did not do so. He also complained that he had not had monthly updates from Officer Z or Officer Y despite this being promised and he had not received the microfiche documents relating to him.
28. Officer Y responded to Mr B on 14 December 2021, after the complaints officer had clarified the statement of complaint with Mr B. They said in respect of the microfiche that the Council was digitizing the documents and reviewing them to better understand what information they contained. Once this process was complete it would send relevant copies to individuals. Officer Y said the Mayor would be in touch in about three months’ time to keep him informed of progress.
29. Mr B had also asked for the recording of the June briefing meeting. Officer Y said the Council was not disclosing this, but it had sent a transcript to all attendees. Officer Y apologised for the Mayor not providing monthly updates but said officers had been in regular contact with the Group.
30. In respect of Officer Z’s actions Officer Y said the Mayor had provided an update (about the microfiche documents) and Officer Z had apologised at the meeting for his misunderstanding of the controls on the Home Office documents and provided an explanation for the misunderstanding.
31. Officer Y did not give details of the next step for Mr B’s complaint. They only provided details of how to challenge the Freedom of Information response.
32. Mr B remained unhappy and tried to escalate his complaint to stage two of the Council’s complaints procedure. Mr B said the Mayor had not given the promised updates and Officer Y should not have responded as he had also complained about their involvement in the events.
33. The Council responded on 1 March 2022 saying:

“Thank you for your e mail of 25 February 2022 regarding complaint ref…

Please note that as previously advised the response to your complaint was sent on 14 December 2021 and then again by e mail on 04 January 2022.

I have attached a copy for your attention.”

34. The Council did not provide any further response or signpost Mr B where he could take his complaint, until a complaints officer spoke with him in April 2022 for almost an hour. There was no written record of the call but the Council, said it was satisfied after this call that it had dealt with Mr B’s complaint and directed him to our office.
35. I have listened to a recording of this call. The Council said only children’s complaints can go to a stage two and it could not deal with Mr B’s complaint at stage two but did not give a reason why not. It suggested that Mr B would have to follow a separate procedure to complain about the Mayor not giving updates. The call ended with the officer saying she would forward Mr B details of how to complain to the Ombudsman and she would ring him back on the next working day once she had spoken to her manager.
36. In response to my enquiries the Council has clarified that in April 2019 it sent Mr B microfiche documents containing personal information about him at the school. It also said the microfiche documents found in February 2021 did not contain any personal information about any pupils but was more to do with repairs to the building and maintenance. It says Mr B is aware of this. It has recently provided a copy of an email from Mr B dated 15 January 2023 where Mr B says Officer Y said at a Q&A meeting that no records were found belonging to him.

Analysis

37. I can fully understand that this is a very sensitive and distressing situation for Mr B. He must be very frustrated at the lack of options open to him to achieve recognition and closure for the traumatic events he experienced. However, in the absence of any other redress scheme, the only formal route open to him is a legal claim.
38. I understand he is not after compensation and his goal is acknowledgement and an apology. But we still cannot achieve that for him. The availability of documents from decades ago in potentially many different locations is not an issue we can comment on and would have to form part of a legal claim.
39. I have limited my investigation to looking at whether the Council has frustrated the process by not providing information or misleading people as to the correct status of information. I have also looked at how the Council dealt with Mr B’s complaint about the issues.

Officer Z

40. Mr B’s complaint was focused on Officer Z giving incorrect information to other authorities about documents held by the Home Office, the discovery of microfiche records and suggesting that the people making the claims could not even prove they were at the school.

Official Secrets Act

41. Officer Z accepted during the June 2021 meeting with the Group that he had wrongly stated that the Home Office documents were subject to the Official Secrets Act. He said it was due to a misunderstanding and he apologised for it. Mr B was able to directly challenge Officer Z and hear the response. However, there was no formal apology given and no more detailed explanation for how the misunderstanding occurred. This was fault as it created uncertainty for Mr B as to whether Officer Z’s actions were a deliberate attempt to frustrate the process. The Council should have provided a fuller explanation as part of its complaint response, but it did not do so. This was fault.
42. However, I have not seen evidence to say that this incorrect information prevented or obstructed any other information being shared. Furthermore, Mr B obtained the information himself directly from the Home Office and it did not provide anything useful for the legal claims.

Microfiche records

43. Mr B said the Council should have informed the multi-council meetings in February and March 2021 that the Council had found some more microfiche records. Given that the Council had only just discovered the microfiche records at the time of the meetings in February/March 2021, I do not consider Officer Z was at fault for not mentioning the discovery. It was at a very early stage and the Council had not yet established what the records contained.
44. The Council informed the Group in June 2021 about the discovery of the microfiche documents and gave a timeframe for when they would receive them. It gave a further timeframe in its complaint response in December 2021. To date Mr B has not received anything in writing about these documents. The information the Council has recently sent to me indicates that Officer Y told him they contained no information about him, but this exchange is undated and unclear.
45. Given this new information I have concluded that Mr B was possibly aware by January 2023 that the microfiche documents did not contain any information about him. However, given the seriousness and sensitivity of the issue, I consider the Council should have provided this information in writing and have a record of it. The failure to do was fault, which caused frustration and confusion to Mr B, exacerbated by the piecemeal way the Council has communicated to him and me on this issue.

Other comments about evidence

46. The other comment by Officer Z recorded in the minutes of the meeting in February 2021 relating to the possibility that none of the claimants could prove they were at the school, appears insensitive and harsh. However, the minutes are very brief, and it is difficult to assess the context in which the comment was made. Given that the focus of the Council was to consider the legal claims, I understand that it had to assess the robustness of the evidence from a legal perspective and the comment would be a valid part of that process.
47. I also note that several reassurances were given by the Mayor and other attendees at the briefing in June 2021 that the Council did not doubt the veracity of the statements from the members of the Group about their experiences.
48. However, I consider the Council once again missed the opportunity in its complaint response to obtain Officer Z’s direct comments on the statement and provide further explanation and reassurance to Mr B. This was fault.

Complaint handling

49. I have noted above that the single complaint response (from December 2021) did not adequately answer Mr B’s complaint about Officer Z’s comments or offer a formal apology. If it had investigated the matter more thoroughly, the Council could have obtained the views of Officer Z before they left the Council. They are no longer available to account for their actions. This missed opportunity was fault which prevented Mr B receiving a full explanation for the issues he raised.
50. The complaint response did not say it was a complaint response and contained reference to several freedom of information requests, which was confusing. It did not signpost Mr B to the next stage of the complaints process (our office) or say that it was a one stage process due to the COVID19 pandemic. This was fault as Mr B wasted several months trying to establish what he should do next.
51. In response to a draft of this decision the Council says it followed its published complaints procedure at the time: a reduced single-stage procedure in response to the COVID19 pandemic. The Council had not mentioned this complaints procedure before to Mr B and only very recently to me. As it was only going to provide one response to Mr B’s complaint it should have made sure it was a complete, clear and robust response. It was not, for the reasons set out above.
52. The Council also missed a clear opportunity in February 2022 to explain to Mr B that it was only operating a single stage complaints procedure and that the next stage was our office. This was further fault which caused Mr B frustration and time and trouble in knowing how to pursue his complaint.

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Agreed action

53. The Council offered to apologise to Mr B in writing for the comments made by Officer Z. I welcome this offer but consider further action is appropriate. In recognition of the injustice caused to Mr B, I recommended the Council within one month of the date of my final decision:
• writes to Mr B confirming that the microfiche documents found in February 2021 do not contain any personal information about him; and
• apologises to Mr B and pays him £250 for his time and trouble in pursuing this matter.
54. The Council has agreed to these recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

55. I consider this is a proportionate way of putting right the injustice caused to Mr B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman