Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care Plan. It is unlikely we could add anything to the Council’s response, and we cannot investigate complaints about what happens in schools. The Information Commissioner’s Office is best placed to look at some of Mr X’s complaint and there is not enough evidence of fault in the Council’s complaint handling.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the Council’s handling of his child’s Education, Health and Care Plan (EHC Plan). Mr X says the EHC Plan and associated documents, such as an Educational Psychologist’s (EP’s) report, contained inaccuracies. Mr X says they have caused emotional harm to his child. Mr X wants to know where the inaccurate information came from and is unhappy the Council has not considered his complaint under the children’s statutory complaints procedure

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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 not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended.
5. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection issues. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. In its response to Mr X’s complaint the Council said some of the Educational Psychologist’s report was based on information verbally provided by school staff. The Council agreed to remove two sentences based on this information. The Council said that other comments Mr X had queried were based on information from his child. The EP would add further context about these. The original EP report had been replaced with an updated version and sent to his child’s school.
9. While I understand Mr X’s concerns, we will not start an investigation into his complaint. The reasons for this are:
• If we were to investigate it is unlikely that we could add anything to the Council’s response. It has amended its records and explained the actions taken. Our involvement would not lead to a different outcome.
• Mr X wants to know which member of staff at his child’s school provided some of the information he is unhappy with. We have no powers to consider complaints about what happens in schools.
• Mr X’s complaint flows from information held or processed by the Council. When someone has a complaint about such matters, the Ombudsman normally expects them to bring the matter to the ICO. It has the power to take enforcement action against a data controller for a breach of one of the eight principles of information handling as set out in the Data Protection Act. The ICO is therefore better placed than the Ombudsman to deal with Mr X’s concerns if he feels the Council has failed in its duties as a data controller.
• The Children Act 1989 established a requirement for councils to have a formal representations procedure to deal with complaints about local authority functions under Part 3 of the Act and some sections of Parts 4 and 5. Councils must use the statutory procedure to respond to issues which fall under the procedure’s remit. The matters Mr X complain about do not fall under the statutory procedure’s remit. So, there is no evidence of fault in the Council not considering Mr X’s complaint under the procedure.

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Final decision

10. We will not investigate Mr X’s complaint because it is unlikely our involvement would lead to a different outcome. We cannot investigate complaints about schools and the ICO is best placed to consider complaints about information handling. There is not enough evidence of fault by the Council’s complaint handling to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman