Summary: The Ombudsman will not investigate Mrs X’s complaint about her cousin’s care and access to information. This is because Mrs X’s complaint is late, and the Information Commissioner’s Office is best placed to consider complaints about access to information.

The complaint

1. The complainant, whom I shall call Mrs X, complains about the care her late cousin (Y) received from the Council. Mrs X also complains about access to information regarding Y.

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The Ombudsman’s role and powers

2. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. We normally expect someone to refer the matter to the Information Commissioner 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)

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How I considered this complaint

6. I considered Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

7. Mrs X has concerns about the care Y received when his mother passed away in 1988. Mrs X says Y was taken into the care of the Council’s social services team. Mrs X says Y was neglected and she tried to raise her concerns when he first went into care.
8. Y passed away in 2018. Mrs X says she has been trying to obtain Y’s file from the Council. Mrs X wanted information about where Y’s mother was buried so that Y could be buried with her.
9. The Council has provided Mrs X with information about the care Y received. It says it was not involved with Y's estate, funeral arrangements, and has no information about where Y’s mother was buried. It has told Mrs X what information she will need to provide if she would like a copy of Y’s social care records.
10. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Mrs X could not have complained much earlier. This applies to her complaint about the care her cousin received, and access to Y’s records. The exception at paragraph 2 therefore applies to her complaint.
11. But even if Mrs X’s complaint was not late, it is not one we would investigate. This is because there is no evidence Mrs X has suffered any personal injustice because of the care Y received. I have also not seen any evidence that Mrs X ever had Y’s consent to complain on his behalf.
12. Also, Mrs X’s complaint about access to her cousin’s records is to do with data protection. 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 someone is entitled to.
13. 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. Mrs X should therefore approach the ICO if she thinks the Council is withholding information she is entitled to.

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Final decision

14. The Ombudsman will not investigate Mrs X’s complaint. This is because Mrs X’s complaint is late, and the Information Commissioner’s Office is best placed to consider her concerns.

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Investigator's decision on behalf of the Ombudsman