The Absence of a Child's Consent Does Not Prevent a Local Authority from Investigating a Complaint

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Article

15 August, 2019

A Local Government Ombudsman (LGO) has ruled in favour of a father who sought action against Lancashire County Council (LCC) for its refusal to investigate his complaint.

LCC had refused to instruct an independent investigator because the affected child had not provided his consent to escalation of the complaint to the investigation stage.

Background

The father initially complained to LCC alleging that its failure to provide regular social work support had resulted in a significant deterioration in his son's behaviour, a complete breakdown in their father/ son relationship and his son's eventual removal into care. The father also complained that LCC's failings had negatively impacted upon both his and his partner's mental health, resulting in the breakdown of their relationship.

Regulations 14-20 of the Children Act 1989 Representations Procedure (England) Regulations 2006, sets out the Statutory Complaints Procedure. Upon receipt of a complaint, a Local Authority must serve its initial response within 10 days of receipt of the complaint. If dissatisfied, the complainant can then request an independent investigation, which should be completed by the Local Authority within 65 days. If still dissatisfied the complaint can be escalated to a Stage 3 Review Panel. S.26(3) of the Children Act 1989, states that a Local Authority is unable to depart from this statutory complaints procedure save in exceptional circumstances.

The LGO found that it was unreasonable for LCC to refuse to progress the complaint to the investigation stage. The parent was entitled to make the complaint and the Local Authority was obliged to consider that complaint.

LCC raised GDPR concerns based on the lack of the child's consent, however the LGO held that Article 6(1)(c) General Data Protection Regulation 2016/679 permitted investigation in the absence of consent from the data subject (the child), where the processing of that data was necessary for compliance with a legal obligation to which the controller (Local Authority) was subject.

Whilst the Investigator ought not to share the child's personal information with the parent without the child's consent, the Investigator could process information held in relation to the child to comply with his statutory obligation to investigate the complaint.

Outcome

The LGO found LCC to have breached its statutory duty and recommended that it offer up an apology to the father combined with payment of £300 in recognition of the distress caused by LCC's failure to investigate.

The LGO also recommended that LCC pay a further £250 to the father for the time and trouble he had been put to in bringing the complaint to the attention of the Ombudsman.

LCC also agreed to inform its Children's Services staff that the child's consent was not required to before investigating a parent's complaint.

Michael King, Local Government and Social Care Ombudsman added that the LGO " does not expect any council to routinely refuse to investigate a complaint on the basis of the child's interests or wishes".

For more information contact Lucy Harris in our Insurance department via email or phone on 01254 222443. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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