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Selected Cases and Summaries of Completed Investigations - April to September 2000
Volume 3 - 3rd REPORT - SESSION 2000-2001
Chapter 1
DEPARTMENT OF HEALTH
1. Case No. C.1274/00
Delay in removing a name from their police notification list
Summary
The Department of Health (the Department) add to the police notification list the names notified to them by the police of those who, while employed in child care work, receive convictions or cautions suggesting that they may be unsuitable to work with children. On 6 January 1999 the police wrote telling them that Ms X had been cautioned for theft and giving her occupation as community worker. On 12 March the Department wrote informing Ms X that they had added her name to the list. Despite representations in March and August respectively from Ms X's solicitors (who chased the Department in July) and the Member that Ms X's name should be removed from the list, the Department did not do so until 15 September. That same day they wrote informing her that they had done so. Ms X complained that the Department had wrongly placed her name on the list; that they had delayed removing her name once she had brought the error to their attention; and that their actions had caused her distress and had denied her the opportunity of an interview with an employment agency, as a result of which she had suffered a period of unemployment. The Ombudsman was satisfied that the Department had properly added Ms X's name to the list given the information provided by the police. However, he criticised them for delay in adding, and subsequently removing, her name from the list. He also criticised them for lessening her chances of finding suitable employment, although he was unable to say with any certainty that in the absence of maladministration by the Department things would have turned out differently or that she would not have suffered a period of unemployment. The Ombudsman considered as a satisfactory outcome to the complaint amendments to the Department's procedures, an undertaking from the Permanent Secretary of the Department of Health to apologise personally to Ms X, and an offer of £500 in recognition of the distress caused.
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Full text
1. The Ombudsman's sole remit is to investigate complaints of maladministration on the part of those bodies which are listed in Schedule 2 to the 1967 Act. The police are not so listed. I refer to the Police in this report only to set in context the actions of the Department of Health to which my investigation has been confined.
The complaint
2. Ms X complained that the Department of Health had wrongly placed her name on their list of individuals employed in posts involving the care of children and convicted or cautioned for criminal offences; and that they had delayed removing her name from that list once she had brought the error to their attention. She said that the Department of Health's actions had caused her distress and had denied her the opportunity of an interview with an employment agency, as a result of which she had incurred a financial loss.
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Background
3. The Department of Health's Consultancy Index Service (the consultancy service) operate a list of the names of those about whom concerns exist regarding their suitability to work with children. That list is known as the consultancy index. Information held on the index is received from reports submitted by employers when a child care worker has resigned, been dismissed, or has been moved to a less sensitive post in circumstances suggesting that the welfare or safety of children has been, or may have been, put at risk. Local authorities and other child care organisations may consult the index when considering appointments to paid or unpaid posts where there is scope for unsupervised access to children. Home Office guidance also requires police forces in England and Wales to report to the Department of Health the names of those who, while employed in child care work, receive convictions or cautions suggesting that they may be unsuitable to work with children. The type of offences to be reported are those involving violence, indecency, dishonesty, alcohol or drugs. The Department of Health maintain those names on what is known as their notification list. The consultancy service write telling the individual concerned that his or her name has been placed on the notification list and giving the opportunity to make representations on the matter. Employers in the child care field may consult the notification list for details of any conviction or cautions recorded against a prospective employee. It is for the employer to decide whether a conviction or caution is relevant to the position applied for.
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Investigation
4. 1998 On 8 December 1998 the police cautioned Ms X for theft. On the Police National Computer they recorded her occupation as community worker. As a result of the events that had led to the caution, Ms X's then employer (whom I call the project) dismissed her from her post as a housing officer.
5. 1999 Ms X told the Ombudsman's staff that on 4 January 1999 she started working for a housing project as a relief worker in the absence on sick leave of one of their employees. (Her contract ended on 16 July when that employee returned to work.) On 6 January the police sent a copy of the relevant Police National Computer entry telling the consultancy service of the caution recorded against Ms X. On 18 January the Department of Health date stamped receipt of that letter. On 12 March the consultancy service wrote to Ms X explaining that they had added her name to the notification list. They told her to write to them if she had any comments on the matter. On 23 March Ms X's solicitors wrote asking the consultancy service to remove her name from the notification list. They outlined the events that had led to the caution. They said that Ms X had been working as a housing officer with single homeless people and not families, and that the police would not have offered to close the matter with a caution if there had been any suggestion that the offence had involved children. There was no suggestion that she had acted with dishonest intent and the whole incident was regrettable. The matter had cost Ms X her job and she could not understand why the police had referred the matter to the consultancy service. The solicitors could only suggest that the police had believed that the project were involved in housing children. On 31 March a consultancy service officer instructed another officer to verify with the project the solicitors' claim that Ms X had not been involved in child care at the time of the caution. (I found no evidence that that was done.) On 6 April the consultancy service wrote to the solicitors saying that they were considering the points raised and would reply shortly.
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6. On 29 June the solicitors wrote to the consultancy service saying that they had heard nothing since April. Ms X was very anxious about the matter. They asked to be informed immediately whether her name was to be removed from the notification list; and for prompt attention to the matter. On 23 July an employment agency specialising in social care wrote to Ms X returning to her an application she had made to register for employment. They said that they were unable to proceed with registration in the absence of a reference from the project. Additionally, they understood that there would be difficulty with a Department of Health check; that was an essential part of their registration procedure.
7. On 16 August the Member wrote to Ms X explaining that he had telephoned the consultancy service who had apologised for their failure to reply to the solicitors' letter (it had been passed to another Department of Health section for reply) and had agreed to remove her name from the notification list. On 15 September the consultancy service wrote to Ms X explaining that they had done so.
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The Department of Health's comments on the complaint
8. The Permanent Secretary said that the Department of Health's working assumption is that the police determine whether an individual's occupation is one which suggests that they should notify the name of the individual to the Department of Health. As it had been conceivable that Ms X had had direct contact with children in her community work (paragraph 3.4), the Department of Health had been entirely correct in adding her name to the notification list. The Permanent Secretary said that the Department of Health had not acted on their instruction of 31 March 1999 (paragraph 3.5); long term sickness absence and the departure of another member of staff, combined with pressures associated with steering the Protection of Children Bill through Parliament, had severely depleted staffing levels in the relevant section at that time. He regretted that Ms X's case had been a casualty of the resultant backlog of work. Additionally, the relevant section had no record of the solicitors' letter of 29 June 1999, receipt of which should have led to action on Ms X's case. In the event, that had not happened until the Member telephoned the Department of Health on 13 August. The Permanent Secretary very much regretted that unacceptable delays had occurred in removing Ms X's name from the list, and undertook to write to her apologising. (He did so on 7 April 2000.) He said that he was unable to explain the four weeks' delay in the consultancy service sending their letter of 15 September 1999 to Ms X following the Member's intervention on 13 August; a fuller letter, including an apology for that further delay, should have been sent. Finally, he said that the Department of Health had put in place systems to ensure that such delays did not recur.
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Further enquiries
9. The Ombudsman's staff asked Ms X why there had been no reference available from the project when she had applied to register with the agency for employment. Ms X explained that she had not given the agency permission to approach the project. As a matter of courtesy, she had wanted to let them know beforehand to expect such an approach. Additionally, before approaching the project she had wanted to explain to the agency the circumstances of her dismissal. On being asked by the Ombudsman's staff how the agency had known that there would be a problem when checking her name with the Department of Health, Ms X explained that in May 1999 she had sent an application form to the agency to register for employment as she had believed that her contract with the housing project would soon end. She had mentioned that the Department of Health had put her name on the notification list but that she was challenging that. In July she had contacted the agency about her application. They had asked her to complete another form as they had lost the original. Ms X said that her good name had been tarnished without valid reason. She also said that she had suffered a loss of approximately £1,699 in wages for the six weeks she had been unemployed. The housing project had paid her £283.18 a week - she provided a wage slip to support that contention - and that was the minimum she could have earned. The whole episode had caused her unnecessary embarrassment, humiliation and anxiety.
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Findings
10. I consider first Ms X's complaint that the Department of Health had improperly added her name to the notification list. The Permanent Secretary said that the Department of Health's working assumption is that the police determine whether an individual's occupation is such that they should notify the Department of Health of a conviction or a caution; and that it had been conceivable that Ms X had had direct access to children through her occupation (paragraph 3.8). I accept that. In my view the police are best placed during their investigation to ascertain whether the occupation of someone they have cautioned or who has been convicted of certain criminal offences merits notification to the Department of Health. Theft is such an offence (paragraph 3.3). The police told the Department of Health that Ms X was a community worker and had been cautioned for theft. In the circumstances I find no fault with the Department of Health for adding Ms X's name to the notification list.
11. I consider next the Department of Health's handling of the solicitors' representations on the matter. First, although the Department of Health identified the need to clarify the nature of Ms X's previous employment (paragraph 3.5), they did not do so. It was not until 15 September, nearly six months after the Department of Health had received the solicitors' representations, and four weeks after the Member's intervention, that they removed her name from the notification list. I also note that the Department of Health received the police's letter on 18 January 1999 but did not add Ms X's name to the notification list until 12 March. I criticise the Department of Health for those appalling delays. I welcome the Permanent Secretary's personal apology for those delays, and while it will be of little comfort to Ms X, I also welcome his assurance that the Department of Health have taken steps to ensure that similar delays do not recur.
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12. The question remains whether, and if so to what extent, the Department of Health should compensate Ms X. Her application to the agency to register for employment appears to have failed on two grounds: a potential problem with a Department of Health check; and because no reference was available from the project. Ms X told the Ombudsman's staff that she had not given the agency permission to ask the project for a reference as, before they did so, she had wanted to explain to the agency the circumstances of her dismissal and had wanted to inform the project to expect an approach from the agency. If the Department of Health had not delayed taking action to put Ms X's name on the list, and had not further delayed in removing it, she could probably have made representations and had her name removed by at the latest the end of March 1999. That would have given her the opportunity of registering with the agency without having to explain that her name was on the list; and I do not doubt that her name being on the list had a negative effect on her application to the agency. If the Department of Health had not delayed matters, Ms X would still have had to overcome the hurdle of obtaining a reference from the project. It is not possible to say with any certainty that in the absence of maladministration by the Department of Health things would have turned out differently for Ms X or that she would not have suffered a period of unemployment; but I strongly criticise the Department of Health for lessening her chances of finding suitable employment.
13. Ms X also sought compensation for embarrassment and distress caused by the Department of Health having put her name on the notification list. While I do not doubt that the inclusion of her name on the list distressed Ms X, I have found no fault with the Department of Health for that. However, I do not doubt that the Department of Health's silence regarding the solicitors' representations, and the prolonged and quite unwarranted delay in removing her name from the list, caused Ms X a great deal of anxiety and uncertainty, given the adverse effect on her chances of obtaining employment of her name remaining on the list. Nor do I doubt that she felt some embarrassment in explaining to the agency, which should not have been necessary, that her name was on the list. As I was satisfied that the Department of Health were culpable over those situations, I invited the Permanent Secretary to make Ms X an ex gratia payment in recognition of the effects of the Department of Health's maladministration. In reply he said he proposed to offer Ms X an ex gratia payment of £500 in recognition of the distress caused by the Department of Health's delay in reviewing her case, removing her name from the notification list and notifying her of their decision to do so.
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Conclusion
14. While I was satisfied that the Department of Health had properly added Ms X's name to the notification list, I criticised their delay in doing that and in subsequently removing her name from the list. I consider the amendments to the Department of Health's procedures, the Permanent Secretary's apology and the offer of £500 a suitable outcome to a partly justified complaint.
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