The Ombudsman's final decision:
Summary: The Council is at fault for losing or failing to keep Mr X’s records from his time in care. The Council will pay Mr X £1000 in recognition of the injustice caused.
- The complainant, who I refer to as Mr X, complains the Council lost his personal documents from his time in care.
The Ombudsman’s role and powers
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal or court. (Local Government Act 1974, section 26(6)(a)and (c), as amended)
- We normally expect someone to refer the matter to the Information Commissioner (ICO) 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)
- When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. Where that is not possible, we may recommend a financial payment to acknowledge the impact of faults. This is often a modest, symbolic amount. It is not our role to assess economic losses or award compensation. The courts are for people where this is a primary goal.
- If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I considered the information and documents provided by Mr X and the Council.
- I spoke to Mr X about his complaint by telephone.
- I considered documents from an investigation by the Information Commissioner’s Office (ICO).
- I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mr X complains the Council lost his records from his time in care during the 1970’s. Mr X was placed in a children’s home where he says there was systemic abuse. There have been criminal convictions of staff at the home.
- Mr X says the loss of the records has made it more difficult for him to get answers about that time in his life and has affected the prospects of him being able to get redress for the abuse he suffered.
- Mr X also made a complaint to the ICO. The ICO upheld Mr X’s complaint and found the Council had breached data protection law by not responding to the subject access request within the time limit and by breaching Mr X’s personal data.
- The Council told the ICO the records were subject to a retention schedule of 75 years and it has no information to suggest the records were destroyed.
- The Council has tried to find the documents but has been unsuccessful.
- The ICO found the Council’s failure to secure the personal data of Mr X broke the Integrity and Confidentiality Principles of the General Data Protection Regulations (GDPR).
- The ICO told the Council to carry out further enquiries to look for the records, however these were unsuccessful.
- The Council says the records of Mr X and his sibling are the only requests it has been unable to meet; it considers this loss to be an isolated incident.
- The Council provided Mr X with an apology but his complaint to the Council and to ICO did not lead to any further remedy.
Relevant law and guidance
- The ICO has powers to take enforcement action against a data controller (here the Council) if it breaks one of the data principles. The ICO is not acting as a statutory tribunal when it does so. This means that the Ombudsman is not barred from considering a complaint where the ICO has investigated and found a breach, as would be the case if a complainant had appealed to a Tribunal or Court.
- The GDPR gives those affected by a data breach the right to claim compensation at court from an organisation if they have suffered damage because of a breach of data protection law. This includes ‘material’ damage (a person has lost money) and ‘non-material damage’ (a person has been caused distress).
- I have exercised discretion to consider the complaint as, although Mr X has also complained to the ICO, who has found fault, this has not provided Mr X with a remedy for the breach other than an apology.
- Mr X is seeking a financial remedy for the loss of his records. The ICO investigation has not achieved this so Mr X has an outstanding injustice.
- I consider a financial remedy is appropriate to acknowledge the impact the loss of the records has had on Mr X.
- The Ombudsman can only recommend a modest symbolic payment for the loss of Mr X’s records. Mr X may consider his financial losses go beyond a modest level as the loss of records may prevent or hinder Mr X pursuing legal remedies. It is not the Ombudsman’s role to assess economic losses or award ‘compensation’ for negligence or abuse. If Mr X wants to pursue ‘compensation’ he would need to use the courts and he is advised to seek his own legal advice before doing so.
- The injustice and distress to Ms X is significant. The Council has already provided an apology to Mr X. The Council will make a financial payment of £1000 to Mr X to acknowledge the impact of the fault and the distress caused. The Council will take this action within four weeks of my final decision.
- I have completed my investigation. There is fault by the Council in failing to secure Mr X’s data. The agreed action set out above is a suitable remedy for the injustice caused.
Investigator's decision on behalf of the Ombudsman