A recent (June 2022) decision of the Local Government and Social Care Ombudsman shines a spotlight on the significant barriers care experienced people can face when requesting access to their care files. We briefly examine this decision, in which a local authority took more than two years to respond to such a request, before considering relevant legislation and national guidance. We hope the overview of the law we share in this issue will assist those advocating on behalf of care experienced people to challenge delays and, where possible, seek remedies.
Council at fault for taking over two years to provide care files to a care experienced young woman
This decision concerns a request made by B* to access her care records. B was removed from her home and taken into local authority care when she was a teenager. B made the request for her care files in August 2017, shortly after turning 18. The local authority stated it would not be able to comply with the request within the usual timescales, saying it would provide the files by December. (The Ombudsman’s decisions notes that, during that time, internal discussions were being held about whether receiving some of the records could be harmful to B). The council updated B in writing in November, stating it would provide a further update in January 2018. The local authority failed to take action after that point.
In June 2019, 17 months after the date the local authority said it would update B, she wrote to the council asking for another update, to which the council responded saying it would aim to provide the records by the end of that month. No action followed until B contacted the local authority again in September 2019. According to the Ombudsman’s investigation, the council was again holding discussions with B’s support worker (no details about the nature of this worker are contained in the Ombudsman’s decision), about how to ensure B could cope emotionally with the information in her records.
B’s care files were finally sent to her in October 2019, 2 years and 2 months after she asked for them.
In February 2021, B complained to the council about the delay in receiving her care files and about not being taken into care sooner. The local authority informed B in June 2021 that it would not consider her complaint due to the time that had passed since the events she was complaining about had taken place. It was at that stage that B complained to the Ombudsman. The Ombudsman investigated the delay only. (The Ombudsman refused to investigate failure to remove B from her home sooner due to the length of time that had passed, and the low likelihood that it would be able to provide B with the requested remedy).
Regarding the delay, the Ombudsman found the council at fault for significantly delaying providing B with her care files. The Ombudsman said in his decision:
“The evidence shows the files were lengthy and the council took time to review and consider the emotional impact releasing the files would have on [B]. However, whilst I would expect the council to ensure [B] was properly prepared to receive potentially sensitive or upsetting information, I consider the council’s delay excessive. This is fault. [B] was likely inconvenienced and frustrated by the council’s actions.”
The following recommendations were made to the council:
- To issue a written apology to B within one month;
- To offer (within one month) a very small financial redress of £150 to B; [The Ombudsman’s guidance on remedies states: “We expect bodies in jurisdiction to treat people fairly and with respect, and not to expose the public to unnecessary distress, harm or risk as a result of their actions or inactions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. The amount depends on the circumstances of the case”.
- To provide evidence to the Ombudsman, within three months, demonstrating the council has reminded all staff of the timescales for processing subject access requests.
*In his decision, the Ombudsman refers to the complainant as ‘Ms X’. In our summary, we have referred to her as ‘B’ to stress her young age and to avoid the impersonal connotations of the letter ‘X’.
You can read the full decision here: Norfolk County Council (21 007 700)
For an example of a different decision relating to accessing care files, see Birmingham City Council (21 001 118) where the Ombudsman found a local authority failed to consider whether a care experienced person would need support or advice when accessing their children’s social care files because of the distress this could cause them. In that complaint, financial redress of £400 was agreed.
To learn more about the types of remedies that can be recommended by the Local Government and Social Care Ombudsman, read the July 2021 issue of our children’s rights legal digest (scroll down to the blue box at the bottom of the page). You can access the Ombudsman’s guidance on remedies here.
Relevant legislation and guidance: The right to access personal data and related records
Data Protection Act 2018
Section 45(1) gives ‘data subjects’ (that is, the person whom the data relates to/is about) the right to obtain from the controller confirmation about whether or not personal data concerning them is held, and, where this is the case, the right to access it. This is called ‘right of access’ and requests to access this type of data are called ‘subject access requests’ (SARs).
Section 45(3) states:
“Where a data subject makes a request under subsection (1), the information to which the data subject is entitled must be provided in writing —
(a) without undue delay, and
(b) in any event, before the end of the applicable time period.”
‘The applicable period’ is defined in section 54(2) as one month beginning with:
– when the request is received; or
– when proof of identity is presented (if this is later than the date of the request); or
– when any required fee is paid (if that falls later than any of the two dates above).
However, the one-month time period may be extended by two further months due to the complexity of the request or the person (data subject) making more than one request. In these situations, the data controller must inform the data subject about the extension within one month of receipt of the request, together with the reasons for the delay (Article 12(3) of Regulation (EU) 2016/679 (United Kingdom General Data Protection Regulation).
Data controllers (for example, local authorities) “must take reasonable steps to ensure that any information … to be provided to the data subject is provided in a concise, intelligible and easily accessible form, using clear and plain language” (section 52(1)).
Useful and accessible online guidance - Right of access – is also available from the Information Commissioner’s Office (ICO). It includes practical examples of what would constitute a complex request justifying an extension of the one-month time limit.
Responding to care leavers’ requests for care records
Statutory guidance – The Children Act 1989 guidance and regulations Volume 3: planning transition to adulthood for care leavers – contains important guidelines that should be followed by local authorities unless there are exceptional reasons not to. These guidelines include:
Comprehensive information about family background and time in care should be provided to care experienced people (para 4.26).
Good practice principles and values underpinning access to care records apply to any care leaver, regardless of their age (para 4.27), and include:
– Access to information is a fundamental right.
– Clear and easy-to-use policies and procedures must be in place and kept under constant review. The local authority’s access to records policy should be publicised. Support should be available for care experienced people to make a request for their records, along with information about how to complain to the council and the Information Commissioner’s Office. Local authorities should review the effectiveness of their access to records policies, including by drawing on care experienced people’s views and experiences.
– Local authorities should ensure that all staff dealing with access to records requests are qualified and supervised.
– Decisions about access to records must be treated as a function of local authorities as statutory bodies, not as the individual responsibility of staff.
– Local authorities should support care experienced people to find family members.
– Local authorities need to “acknowledge and take account of and respect the individual’s circumstances”, in line with the Equality Act 2010.
– Records should be readable, easy to follow and well-ordered, giving information about the person’s family background, reason for being in care and their life in care. Requests for information about family history received from a direct descendant (for example, a child or grandchild) of a care experienced person should be responded to.
Care leavers should be supported to make access requests if this is needed. All requests should be acknowledged promptly in writing (or other appropriate forms of communication, in line with individual needs). Information should be shared about the process and timescales for responding (para 4.32). Confirmation that the requested records exist should be sent within 10 working days (para 4.33).
If the local authority cannot meet the statutory timescales (see above), it must inform the person of the new deadline, “in any case within a month of receiving their request, giving reasons and the timescale when the records will be available” (para 4.33).
If the requested records cannot be found, this should be communicated as soon as possible, along with information about what will be done by the local authority to try and find them. (If records have been sent to another local authority, the person should be put in touch with the relevant organisation) (para 4.33).
In situations where social care records no longer exist because they have been destroyed or mislaid, local authorities should recognise the distress, frustration and upset this is likely to cause. When this happens, local authorities should inform the person promptly and assist them to find other available information (for example, health and education records). Local authorities should also inform the person concerned about what searches it intends to make to find any other available records and how long this is likely to take (para 4.34).
Please also visit the ‘Information about you’ page on our rights4children website.