Summary: We will not investigate this complaint about the Council’s refusal to share a deceased person’s records with their executor. There is not enough evidence of fault to justify us investigating.

The complaint

1. They complain the Council failed to release Mrs Z’s records to them. They say it is legally obligated to do so, but it has refused to share the information under Freedom of Information and Access to Health Records legislation. Mr X and Mr Y want the Council to provide the records to them.

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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 or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X and Mr Y are the executors for Mrs Z’s estate following her death and they requested her records from the Council in December 2020. The Council explained it considered the information exempt from disclosure under section 41(1) of the Freedom of Information Act 2000, as it was provided by a third party in confidence and subsequent disclosure would be a breach of that confidence. It said it also considered the information was exempt under section 36(2)(c) as disclosing it would prejudice, or likely prejudice, effective conduct of public affairs. This was because there was a strong likelihood individuals would not engage with its services if they knew details would be made public after their death. It said there was minimal public interest in the care records of deceased individuals being made public.
7. In February 2021 Mr X and Mr Y, via their representative, told the Council their view was the information request should be handled under the Access to Health Records Act 1990.
8. If we investigated this complaint, I am of the view we would be likely to decide the Council was not at fault. I can see no basis in law why the Council should consider this request under the Access to Health Records Act 1990, which clearly defines “health records” at section 1. The Council’s social care records do not fall under this definition. The Council correctly considered the request under the Freedom of Information Act 2000 and has clearly explained the reasons for its decision not to share the records Mr X and Mr Y requested. Where there is no fault in the Council’s decision making, we cannot question the outcome. The Council was entitled to decide not to disclose Mrs Y’s social care records. It has explained to Mr X and Mr Y that it is open to them to approach the courts to seek an order requiring it to disclose the records.

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Final decision

9. We will not investigate Mr X and Mr Y’s complaint because there is not enough evidence of fault to justify investigating.

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Investigator's decision on behalf of the Ombudsman