Summary: We cannot investigate this complaint about the Council’s handling of Miss X’s complaint. The substantive matters behind the complaint are not separable from matters that have been or could have been raised in court. Miss X also has a right to go to the Information Commissioner’s Office if she wishes to complain of a data breach by the Council, and it would be reasonable to use this right.

The complaint

1. Miss X said the Council did not properly read and respond to her complaint. She said the Council had wrongly told her the complaint was in the remit of a court. She wanted the Council to admit a social worker’s actions, including a data breach, were wrong.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
3. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
5. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
    

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How I considered this complaint

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

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My assessment

9. Miss X says her complaint is about the actions of the social worker rather than what happened in court. But it is clear that the complaint concerns the actions of the social worker related to the opinions he formed about matters that were submitted to a court. It is not separable from the court action.
10. Alleged data breaches are matters for the Information Commissioner’s Office (ICO) not us. Where a breach is found, there is right to take the matter to court.

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Final decision

11. We will not investigate Miss X’s complaint because:

• We cannot investigate the actions of the social worker, which are not separable from matters that have been or could reasonably have formed part of court action;
• We cannot investigate the handling of a complaint about that;
• There is right to approach the ICO about a data breach and to go to court about any confirmed breach it would be reasonable to use; and
• It would not be a good use of public resources to investigate a complaint about how the Council dealt with the complaint about the data breach when we are not dealing with the substantive matter.

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Investigator's decision on behalf of the Ombudsman