Ombudsman urges councils to check information sharing agreements following complaint

The Local Government and Social Care Ombudsman has told councils to check they have “adequate information sharing agreements” with their service providers, after the London Borough of Ealing was unable to comply with an agreed Ombudsman remedy because it could not get hold of the data required.

The council had agreed to the Ombudsman’s recommendation to carry out a statutory Children’s Services complaint investigation to remedy a complaint from one of its foster carers.

The foster carer (Mrs X) had complained about the council’s handling of her concerns about its decision to remove two foster children from her care.

However, after agreeing to carry out the review, the council was unable to access the data it needed from the National Fostering Agency (NFA) which arranged placements on its behalf, the Ombudsman revealed.

The NFA said it could not provide data about the children the foster carers had looked after because the foster parents “did not have the right to request the information”, the report noted.

The lack of conclusion and delay in progressing Mrs X’s complaint caused her and her family “significant distress and uncertainty”, the Ombudsman said.

The Ombudsman’s subsequent investigation concluded that Ealing had not considered that it was itself acting in “loco parentis” and therefore had the right to request the children’s information from the agency.

The NFA stated that Mrs X and her husband did not hold parental responsibility for the children in question and as such “cannot provide valid consent for the disclosure of their personal data”.

The Ombudsman noted that while this is correct, the children are the subject of a care order which meant parental responsibility for them was shared by the council and their birth parents.

Given the council holds shared parental responsibility, it “could and had provided valid consent to access information about the children from NFA when it originally made its request”, the Ombudsman concluded.

Furthermore, the Ombudsman stated that “parental responsibility would only be relevant if the council was making a subject access request”. Adding that “consent is not relevant to the council’s contractual and/or statutory rights and obligations to investigate complaints under the Children Act 1989 and wider duties”.

To remedy the injustice caused, the council has agreed to pay the foster carer £500 to recognise the distress and time and trouble she went to because of the delay.

It will also arrange to obtain the outstanding information it needs to allow the investigation of the foster carer’s complaint, and review its information sharing agreement with the NFA and other fostering agencies about unfettered access to personal data relating to children it has placed in foster care, the report revealed.

Michael King, Local Government and Social Care Ombudsman, said: “When councils enter into contracts with service providers they need to ensure the different parties’ responsibilities are clear from the outset – this can include areas such as complaints resolution and, as in this case, information sharing.

“Because no such agreement was in place with the agency, a foster carer has been waiting more than two years for her complaint to be resolved by Ealing Council, despite its best intentions to do so.

“I’m pleased the council has accepted my recommendations, and hope the changes it will now make will ensure any future cases will be easier to investigate.”

The Ombudsman also recommended that the council should “take steps to amend the cross-borough independent foster care contract it uses to strengthen the information sharing clauses”.

An Ealing Council spokesperson said: “We fully accept the recommendations of the Ombudsman and have formally apologised to Mrs X.

“Since 2020 we have reviewed out data information sharing arrangements with partner agencies, including the National Fostering Agency, to ensure timely, wrap around support and have put in place structures to ensure complaints are followed up at the earliest opportunity.”

This report comes as the Information Commissioner reiterated at yesterday's House of Lords Public Services Committee meeting that public bodies will “not be punished when sharing data to protect children from harm”.

He noted that a change in approach to the enforcement of data protection will put more emphasis on ‘calling out’ bad practice rather than issuing fines, to ensure that data protection does not get in the way of necessary data sharing.

Lottie Winson