Summary: We will not investigate this complaint that the complainant was not properly looked after when she was placed in care as a child, and that she has been given none of her records for this time period. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There are insufficient grounds to exercise discretion to consider this late complaint now, and the Information Commissioner’s Office is better placed to consider the complainant’s concerns about her subject access request.

The complaint

1. The complainant, whom I refer to as Ms X, says she was not properly looked after when she was in care as a child during the 1960/70’s, and that she has been given none of her personal records, despite making subject access requests in 2018.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
3. In that regard, we normally expect someone to refer the matter to the Information Commissioner’s Officer (ICO) if they have a complaint about data protection – including access to information. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I considered information provided by Ms X.
6. I also considered our Assessment Code.

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My assessment

7. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes failing to disclose information somebody thinks they are entitled to.
8. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about access to information, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. Ms X should therefore approach the ICO about her concerns.
9. Furthermore, the 12-month time restriction detailed in paragraph 4 above would apply to Ms X’s concerns about the care she received as a child. I have considered whether there are grounds to exercise discretion to consider this late complaint now. I find there are insufficient grounds to start an investigation, as there would be no realistic prospect of reach a sound, fair and meaningful decision in relation to these historic events.

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Final decision

10. We will not investigate Ms’ Xs complaint because the ICO is better placed to consider her concerns about her subject access request, and there are insufficient grounds to exercise discretion to consider the historic issues now.

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Investigator's decision on behalf of the Ombudsman