Summary: The Ombudsman will not investigate Mrs X’s complaint about access to her late mother’s care records. This is because the Information Commissioner’s Office is the appropriate body to consider her concerns.

The complaint

1. The complainant, whom I shall call Mrs X, complains she is unable to access her mother’s care records.

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The Ombudsman’s role and powers

2. 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:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

3. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection or 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

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

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What I found

5. Mrs X’s mother received residential care arranged by the Council. Mrs X would like to see her mother’s care records from when she was in residential care. Mrs X has asked the care provider directly for the records, but it has so far refused. We asked the Council about this, and it said Mrs X needs to pursue her request with the care provider.
6. The issue at the heart of Mrs X’s complaint is about data protection and access to information. 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 disclosing information in error and refusing to disclose information somebody is entitled to.
7. 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.
8. Mrs X should therefore approach the ICO about her concerns. It can decide if Mrs X is entitled to the information at the heart of her complaint – either directly from the care provider or via the Council. This is not a decision we can take. We cannot achieve the outcome Mrs X wants, but the ICO can. It is therefore the appropriate body to consider her concerns.

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Final decision

9. We will not investigate Mrs X’s complaint. This is because the Information Commissioner’s Office is the appropriate body to consider her concerns.

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Investigator's decision on behalf of the Ombudsman