Summary: We will not investigate Mrs X’s complaint about the Council’s data handling during a Tribunal appeal about her child’s Education, Health and Care Plan. This is because we cannot investigate matters Mrs X has already raised with the Tribunal to resolve. And, the Information Commissioner is the suitable body to consider data protection complaints.

The complaint

1. Mrs X complains about the Council incorrectly sharing third party personal data and its handling of her reports of the data breaches. She complains the Council decided not to refer the breaches to the Information Commissioner’s Office.
2. Mrs X complains the Council mishandled some of the personal data during a SEND Tribunal appeal by repeatedly including other people’s data, including in its Tribunal bundle of documents. She says this compromised the legal bundle and affected the process.
3. Mrs X complains about the Council’s complaint handling, including delays in sending its stage two response.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)
9. We will not usually investigate complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))

Back to top

How I considered this complaint

10. I considered information provided by the complainant.
11. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

12. Part of Mrs X’s complaint concerns data breaches by the Council during a SEND Tribunal appeal about her child’s Education, Health and Care Plan. Mrs X says the Council shared other children’s information during the process. She raised one of these breaches with the Tribunal. We cannot investigate this complaint. This is because we cannot investigate any matter that the complainant has already raised with the Tribunal to address. We also cannot investigate any issues regarding the Councils actions that could have been raised with the SEND Tribunal to resolve with its own powers. Mrs X could have raised any of the data breaches that occurred during the appeal with the SEND Tribunal. We cannot investigate this part of the complaint because, in doing so, we would overlap with the role of the SEND Tribunal.
13. So far as Mrs X complains about the Council’s handling of her reports of data breaches, including any that occurred outside the SEND Tribunal process, we will not investigate this complaint. The Information Commissioner’s Office (ICO) is best placed to consider any complaints about data protection, including where the Council has decided not to report any breaches to the ICO. So, we will not investigate because Mrs X can refer this matter to the ICO.
14. It is not a proportionate use of resources to look at the Council’s complaint handling alone when we are not considering the substantive issues. In this case, any separable injustice is not significant enough to justify our involvement. So, we will not investigate the Council’s complaint handling as a standalone issue.

Back to top

Final decision

15. We will not investigate Mrs X’s complaints about the Council’s data handling during a Tribunal appeal about her child’s Education, Health and Care Plan. This is because we cannot investigate matters Mrs X has already raised with the Tribunal to resolve. And, the Information Commissioner is the suitable body to consider data protection complaints.

Back to top

Investigator's decision on behalf of the Ombudsman