Summary: We will not investigate Miss X’s complaint about the information the Council gave her about an investigation. The Information Commissioner’s Office is better placed.

The complaint

1. The complainant, whom I shall call Miss X, says the Council has not been transparent enough about a safeguarding investigation and this has affected respite care for Z.

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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 normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. We investigate 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 Miss X which included the Council’s replies to her.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Miss X says that Z had respite time at Home Q. Miss X is Z’s mother. Miss X says there was an incident at Home Q in 2020. She says Z was upset by staff member P’s actions. The Council coordinated an investigation. It wrote to Miss X and told her that training had been planned with repair work. Miss X complained. The Council replied in November 2020. It said it could not change P’s shifts as Miss X had asked.
9. Miss X says the Council has not provided her with enough information about the investigation and action taken. She thinks because her family have been affected they should be entitled to see all the information the Council holds about the incident and its resulting investigations. The Council has refused to do so.
10. Miss X also says that Z’s respite has been affected since. Z will not attend Home Q if P is on shift.

Analysis

11. The initial incident and information given to Miss X is now nearly three years old. The Council’s position has not changed. There are no good reasons the late complaint rule should not apply. Even if it did not, we would still not investigate this as the Information Commissioner’s Office (ICO) is better placed.
12. Miss X’s complaint is that she is entitled to see more information than the Council will disclose. This is a Data Protection complaint. 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 follow data protection legislation. This includes not disclosing requested information.
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 data protection, 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. I consider that to be the case here and Miss X should therefore approach the ICO about her concerns.
14. Miss X says Z and her family are not receiving the respite they need. It is reasonable to expect Miss X to complain to the Council about this before we could consider her complaint.

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Final decision

15. We will not investigate Miss X’s complaint because the ICO is better placed.

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Investigator's decision on behalf of the Ombudsman