Summary: Birmingham City Council is at fault in that it failed to consider whether Ms B should be provided with support or advice when accessing personal information in her children’s social care files. This caused her injustice as she was unable to get prompt advice or support when she read upsetting and unexpected information in those files. The Council will take the action detailed to recognise this injustice.

The complaint

1. The complainant, whom I shall refer to as Ms B, says that as a result of recently accessing files that related to her contact with children’s services when she was a child in the late 1990s and early 2000s, she found that staff in a residential care home where she had lived said they believed she had a personality disorder. Ms B complains that she was unaware of this at the time. She has since discovered that the diagnosis was never made by anyone who was qualified to do so but says she suffered a period of time thinking that she did have a personality disorder.
2. The injustice Ms B claims is avoidable distress as a result of the inaccurate recordings and that she was concerned that the diagnosis may affect her current employment.

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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. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
5. 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)

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How I considered this complaint

6. I discussed the complaint with Ms B and considered the written information she provided. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
7. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

What should have happened

9. Under the law individuals may make a request to see personal data that an organisation has about them. It is commonly referred to as a Subject Access Request (SAR).
10. The Council has a guidance document on how it deals with SARs. This is based on advice produced by the Information Commissioners Office. This policy notes that “Social services records may contain information which may be so complex that it requires explanation or so serious that disclosure may well be difficult, even traumatic experience for the data subject, particularly if they suffer from depression. Therefore, it is a good idea in these cases to offer the data subject the opportunity to view their file during a supportive interview with a trained social worker”.
11. The Council says it has a dedicated team that processes SARs for its children’s services records. The Council says this team redacts documents and parts of documents that cannot be disclosed and also that a senior social worker sits in that team and deals with requests from members of the public and advises the SAR team when particular social work knowledge is needed.
12. A child may be looked after by the Council either as a result of agreement with the child’s parents or as a result of a legal order. A child who is looked after is usually placed in foster carer or a residential children’s home. A looked after child has an allocated social worker.

Relevant background

13. The Council’s files reportedly confirm that Ms B received a significant number of services from the Council’s children’s services department. This included a period of time when she was a looked after child living in a children’s care home, placed in secure accommodation, placed on a child protection plan and admitted to hospital following incidents of self-harm.

What happened

14. The Council confirms that Ms B made a request to see her files in November 2019. The Council confirms that it had processed this request and sent the files to Ms B in mid-December 2019. It says it no longer has a copy of the letter it sent to Ms B with these files.
15. Ms B complained to the Council about some of the information that she found in these files in 2020. Her complaint was considered under the children’s statutory complaints procedure. She made two complaints that were considered under this process:
• her records noted that she had been diagnosed with a personality disorder but she was not told of that diagnosis at the time; and
• the Council failed to liaise with the local health provider about the diagnosis or take account of the diagnosis in the care it provider to her while she was a looked after child.
16. The stage 2 investigation did not uphold either part of the complaint finding that although the files included a note which stated that someone who worked in a care home where Ms B had lived had said Ms B had a personality disorder this was never a diagnosed condition. This was why she had never been told of such a diagnosis. Appropriate health professionals had been involved in Ms B’s care and treatment at that time but it was clear that they never diagnosed a personality disorder.
17. Ms B duly asked for her complaint to be considered at a review panel at stage 3 of the complaints procedure. The outcome of that review panel was that it agreed with the stage 2 findings in relation to her complaint and did not consider the complaint should be upheld. However, the panel agreed that Ms B’s request that factual inaccuracies in her file should be removed was reasonable. The panel was also of the view that care home staff had suggested a diagnosis that they were not qualified to make and were of the view that this should have been challenged at the time. However, the notes also state that the panel was reassured that the reference to the personality disorder by the care home was not used by social workers and did not affect assessment or planning for her. The panel recommended that that the Council should:
• apologise to Ms B for the inaccuracy on the file and attach a note identifying the inaccuracies; and
• make a referral to the Information Governance Team requesting a review of the issues raised and the findings of the investigation with a view to it taking appropriate action to resolve them.
18. The Council duly apologised, said it would attach a note to the files confirming and identifying inaccurate information on these files and also agreed that a referral would be made to the Information Governance Team requesting a review of the issues raised and the findings of the investigation with a view to it taking appropriate action to resolve them.
19. The Council confirms that it attached the note to the files confirming that information about the diagnosis was inaccurate. It has provided evidence of this note.
20. In addition, having been contacted the Information Governance Team, it agreed to locate the original paper copy record and redact it to remove the inaccurate references/statements to Ms B having a Personality Disorder. The Council says this was completed shortly after. I have seen a copy of this redacted file entry.
21. In its comments in response to my enquiries the Council has also said it acknowledges that the record in 2002 would have caused confusion and a moderate level of distress to Ms B. In addition to the apology it has already issued it has also offered a payment of £250.

Was there fault and did this cause injustice?

22. I consider the stage 2 investigation was thorough: the investigator interviewed members of children’s services staff, Ms B and was provided with a copy of the entire file of written information. His report refers to the most relevant information obtained and the conclusions are drawn logically from the evidence seen. The review panel at stage 3 also thoroughly considered the matter. There are therefore no grounds for me to reinvestigate. My focus is therefore focussed on whether the council properly considered the findings and recommendations of the independent investigation.
23. The Council has properly completed the actions agreed at the end of stage 3 of the process. There is no fault in its completion of these actions.
24. I am satisfied that both the stage 2 investigation and the review panel recognised that the care home manager’s assertion that Ms B had a personality disorder did not influence the care provided to Ms B and that this view is reinforced by the evidence which confirms there was no such diagnosis made by any suitably qualified professional.
25. I agree with the Council that it was confusing and distressing for Ms B to have seen the inaccurate information on her file. There is no reference in the emails or letter the Council sent to Ms B when it was dealing with her request to view her files, that she was offered the opportunity to have a social worker with her when she viewed them as its policy allows. In her response to my draft decision Ms B confirms this was not offered to her. Given the nature of the information that appears to have been included in Ms B’s records, reference to self-harm for example, it may have been appropriate for the Council to have considered whether Ms B should have been offered the opportunity to view her file during a supportive interview with a trained social worker. I conclude that the evidence suggests this did not happen and this failure amounts to fault. This caused Ms B injustice in the form of lost opportunity to have received support when reading the files. Such support may have helped Ms B manage the unexpected information in the file.

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Agreed action

26. I acknowledge the Council’s offer to pay Ms B £250. However, the Council has agreed it will make a slightly higher payment of £400 to recognise the confusion and distress caused by finding the incorrect information on the file and to recognise the lost opportunity for support when viewing this information. The Council will make this payment within one month of the date of the final decision on the complaint.
27. The Council will provide us with evidence of how it will ensure that in future adequate consideration is given to whether people who have asked to see their files are likely to need or should be offered support or advice as detailed in the relevant Council policy. It will let me have this within three months of the final decision on the complaint.

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Final decision

28. There is fault by the Council in its failure to consider whether Ms B would need support or advice in respect of viewing potentially distressing information when accessing her personal children’s social care files.

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Investigator's decision on behalf of the Ombudsman