Summary: We will not investigate this complaint about an information request and other matters. The Information Commissioner’s Office is best placed to consider complaints about how organisations handle people’s data. Complaints about the Care Provider’s decision to recover unpaid care charges are being considered by the courts, and the Care Provider has not yet had the opportunity to consider complaints about the quality of Mrs Y’s care.

The complaint

1. Ms X complained the Care Provider:
1. refused to share records with her despite her being the bill-payer;
2. demanded payment for her mother’s (Mrs Y’s) care based on planned visit times rather than actual duration of visits;
3. refused to communicate with Ms X and instead issued court proceedings to pursue payment;
4. failed to provide adequate person-centred care to Mrs Y or to carry out proper risk assessments;
5. failed to manage clinical waste properly;
6. failed to train its staff; and
7. took photographs of Mrs Y without consent.
2. Ms X said these matters caused distress and injury to Mrs Y, and Ms X was concerned about the impact not sharing information might have on other self-funders. She wanted the Care Provider to review its policies and procedures.

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The Ombudsman’s role and powers

3. The Information Commissioner's Office (ICO) considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

Matters for the Information Commissioner

8. Ms X’s complaint is partly about the Care Provider’s response to her request for records (complaint a above).
9. The Information Commissioner’s Office (ICO) is the organisation that considers complaints about how organisations handle personal data and requests for information. There is not a good reason for us to consider the matter instead, and the ICO is best placed.

Matters being considered by the courts

10. Ms X’s complaint is also about the Care Provider’s decision to begin court proceedings to pursue payment for care fees (complaints b and c above).
11. We are expressly prohibited in law from investigating organisations’ decisions to begin court proceedings. We cannot consider the content of the Care Provider’s submissions to court and we cannot investigate matters that have been raised via court proceedings.
12. Ms X indicates the family submitted a defence and counterclaim. Any matters raised as part of this are matters we would have no legal power to investigate.

Matters that have not been raised as a complaint to the Care Provider

13. Ms X’s complaint is also about quality of care concerns (complaints d to g above).
14. Ms X provided evidence the family discussed consent to take photographs with the Care Provider, however there is no evidence they raised this matter as a formal complaint. They have not provided any evidence of having raised complaints d, e and f via the Care Provider’s internal complaints process.
15. The law requires us to allow organisations the opportunity to consider and respond to complaints before we can consider them. There is no good reason in this case to disapply this requirement.
16. It is open to Ms X to raise these matters as a formal complaint via the Care Provider, and then complain to us again should this be necessary. However, if these matters were raised as part of a court defence or counterclaim we will be unable to investigate them in any event.

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Final decision

17. We will not investigate Ms X’s complaint because the Information Commissioner’s Office is best placed to consider complaints about how organisations handle people’s data, complaints about the Care Provider’s decision to recover unpaid care charges are being considered by the courts, and the Care Provider has not yet had the opportunity to consider complaints about the quality of Mrs Y’s care

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Investigator's decision on behalf of the Ombudsman