Summary: The Ombudsman will not investigate Miss X’s complaint about information sharing. There is no injustice caused to Miss X which needs a significantly further remedy than the apology the Council has already given.

The complaint

1. The complainant, whom I shall call Miss X, says the Council should not have arranged to assess her child in their nursery setting without her consent.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify the cost of our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered the information Miss X provided with her complaint. I considered Miss X’s comments on a draft version of this decision.

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What I found

5. Miss X has a child, B, who attended a nursery. Miss X believed that B has additional learning needs. She asked the Council to assess B’s needs. The Council refused. Miss X appealed the Council’s decision to the Tribunal. It rejected her appeal because Miss X did not provide the information it asked for.
6. Miss X complained to the Council about the Council’s actions in refusing to assess B’s needs and its wider policy on meeting pupils needs. Miss X says the Council did not stick to its complaints process properly.
7. Miss X says that in April 2019, B’s nursery told her a Special Educations Needs Coordinator for a school was coming to the nursery to assess B before B’s move to school in September 2019. Miss X discovered the Council arranged this and had provided B’s details to the officer without her consent. The school the officer worked at was not one Miss X had applied for a place at.
8. The Council confirmed that no meeting or assessment took place. It apologised for sharing information without Miss X’s consent. It says its data protection team is reviewing the matter to decide if it needs to inform the Information Commissioners Office.

Analysis

9. We will not look at the way the Council replied to Miss X’s complaint about the special educational needs’ assessment. This is because we cannot investigate the decision not to assess, as Miss X appealed that decision to the Tribunal. 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.
10. Miss X believes the Council uses a blanket policy and is failing to meet children’s special educational needs more widely. If her child’s needs are additional to those a school can provide, the right course redress is via an assessment for an Education Health and Care Plan. The Council refused to assess Miss X’s child, she appealed that decision. We cannot look at that issue.
11. We can only investigate Miss X’s complaint if she has been caused a personal injustice because of the Council’s fault. We are unlikely to investigate if the personal injustice is not significant or we could not significantly add to the Council’s action.
12. Miss X says she would not have given consent if the Council had asked her for it to assess her child by that officer. She says discovering the appointment had been made, and cancelling it, caused her emotional upset, distress and time and trouble in pursuing her complaint. She seeks compensation.
13. On the information provided, we should not investigate this complaint. It is unlikely we could achieve more than an apology from the Council. It is within Miss X’s power to refer her case to the Information Commissioner’s Office. It can tell the Council what further action it needs to do to correct the data sharing. We do not usually investigate complaints when the sole issue is a Data Protection Act breach claim.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because it is unlikely we could achieve a significantly different outcome.

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Investigator's decision on behalf of the Ombudsman