Summary: We will not investigate Mr X’s complaint about the Council’s decision to deregister his food business. This is because there is no sign of fault in the Council’s decision not to consider his complaint until the ongoing investigation into potential offences has concluded. We will not investigate Mr X’s complaint about the Council’s response to his subject access requests because this is a data matter best considered and decided by the Information Commissioner’s Office.

The complaint

1. Mr X complains about the Council’s decision to deregister his food business and its decision not to consider his complaint about it until the ongoing investigation into potential offences has concluded. Mr X says the investigation is being used to avoid accountability and obstruct his ability to trade. He also complains about the Council’s response to his subject access requests.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)

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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. Mr X complained to the Council about the matters set out in paragraph 1, above.
9. The Council told Mr X it could not consider his complaint via its complaints procedure at this time. This is because he is currently under investigation for potential offences contrary to Regulation 19 of the Food Safety and Hygiene (England) Regulations (2013) and it could be prejudicial to the ongoing investigation for it to carry out a concurrent complaint investigation. It told Mr X it would be open to him to resubmit his complaint for consideration once the investigation has concluded.
10. We will not investigate Mr X’s complaint. This is because there is no sign of fault in the Council’s decision not to accept and consider his complaint whilst he is subject to an ongoing investigation. It is a decision it is entitled to make. The Council has made the decision in line with its published complaints procedure.
11. Section 19 of the Council’s complaints procedure via its Have Your Say Scheme lists the matters excluded from its complaints procedure. This includes: “Complaints made about a case where the complainant is the subject of any investigation, review, potential prosecution, or regulatory compliance action by the Council pursuant to its statutory functions, or by another party, where considering a complaint would prejudice such action until such time as such proceedings have been fully concluded (including any appeal proceedings)”.
12. As set out in the Council’s response, Mr X will be able to ask the Council to consider the matter via its complaints procedure once the investigation has fully concluded.
13. Mr X’s complaint about the Council’s response to his subject access requests is best considered by the Information Commissioner’s Office (ICO) as it is the body set up to consider complaints about data matters such as this.

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Final decision

14. We will not investigate Mr X’s complaint because there is no sign of fault in the Council’s decision not to consider his complaint until the ongoing investigation on the matter is concluded. Mr X’s complaint about the handling of his subject access requests is best considered by the ICO rather than this office.

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Investigator's decision on behalf of the Ombudsman