Summary: We cannot investigate part of Ms X’s complaint about the Council’s historic child protection actions in the mid-1990s because it relates to matters considered by a court. We will not investigate most of Ms X’s complaint about this because it is late. We will not investigate the Council’s handling of Ms X’s personal data because the Information Commissioner’s Office is better suited. We will not investigate the Council’s complaint handling because the tests in our Assessment Code are not met.

The complaint

1. Ms X complained about the Council’s safeguarding actions relating to her when she was a child in the mid-1990s. Ms X also complained about the Council’s complaints handling and retention of her case files.
2. Ms X said the matter caused her distress, frustration and uncertainty.
3. Ms X wants the Council to apologise and pay compensation.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

Historic safeguarding action during the mid-1990s

10. We cannot investigate part of Ms X’s complaint for this period. During this time the Council made an application to a court for a Care Order. The court rejected the application. Because a court made the decision and considered the matter at the time, the Ombudsman has no jurisdiction or authority to consider these issues now.
11. For any action that occurred outside the court process, the matters complained about are approximately 30 years old. Ms X was aware of the issues complained about for the duration of this time. The complaint is therefore late.
12. When considering discretion to investigate historic complaints, the Ombudsman applies two tests:
1. We are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and;
2. We are satisfied that the complainant could not reasonably be expected to have complained sooner.
13. If either of these tests are not met, we do not investigate.
14. Regarding test one, it is unlikely the Ombudsman could achieve a sound, fair and meaningful decision. This is because the written evidence available is unlikely to be sufficient to reach sound conclusion. We are also unlikely to be able to interview Council officers who were involved at the time. Therefore, the first test is not met, and so we will not investigate this complaint because it is late.
15. Regarding test two, Ms X explained about the significant impact the events of her childhood had upon her. However, the events happened more than 30 years ago, and Ms X has been an adult for most of this time. Although I acknowledge the profound impact Ms X said these events had on her, I consider Ms X could have complained about these matters sooner. Therefore, the second test is not met, and so we will not investigate this complaint because it is late.

Data retention and response to Subject Access Request

16. Ms X submitted a Subject Access Request to the Council as part of her complaint. Ms X said the Council told her there were limited specific records relating to decisions made about her at the time. The Council instead relied on supplementary information from the case files of others when it explained how it made the decisions at the time.
17. This complaint is not late because Ms X was not aware of this matter until recently.
18. However, the matter of data protection, data retention, and data processing are all matters that would be better considered by the Information Commissioner’s Office (ICO). Parliament created the ICO to consider complaints of this type. The ICO is therefore better placed to consider the matter, particularly because we are not exercising discretion to consider the primary underlying issues Ms X complained about.

Complaints handling

19. It is not a good use of public resources to investigate complaints about complaint procedures if we decide not to investigate the substantive issue. Consequently, we will not investigate this complaint because the tests in our Assessment Code are not met.

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Final decision

20. We cannot investigate part of Ms X’s complaint because it relates to matters considered by a court. We will not investigate most of Ms X’s complaint because it is late. We will not investigate part because the Information Commissioner’s Office is better suited. We will not investigate the remainder because the tests in our Assessment Code are not met.

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Investigator's decision on behalf of the Ombudsman