Summary: We will not investigate this complaint about the actions of COVID-19 marshals employed by the Council. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence the matter complained about caused the complainant significant personal injustice. It is also unlikely we could add anything to the Council’s response, and any concerns about data protection are best considered by the Information Commissioner’s Office.

The complaint

1. Mr X complained that COVID-19 marshals employed by the Council photographed children playing in a park without the consent of their parents. The photos were of his own child and two other children. Mr X says the two children were vulnerable and the marshal’s actions placed them in danger. Mr X says he demanded the marshals stop taking photographs. Mr X says the marshals refused to identify themselves and provided their own views about COVID-19, including social distancing. Mr X says the Council tried to “threaten and coerce” him to withdraw his complaint and he was threatened with a fine. He wants the marshals to receive training and the photographs deleting.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
3. 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 may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
4. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) 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

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

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What I found

Complaint response

7. In its responses to Mr X’s complaint the Council said:
• The marshals gave their first names, displayed their ID cards, and were wearing clothes which identified them as COVID marshals. It had taken accounts from the marshals who felt Mr X’s behaviour was intimidating. This led to the marshals radioing for help.
• Marshals had taken photographs, but there is no law to prevent this. Mr X took his own photographs. The marshals had a lawful reason to attend due to a reported breach of COVID-19 regulations.
• It was satisfied the photographs would not place any individuals at risk, and certainly not beyond that of visiting a busy and potentially overcrowded place during a national lockdown.
• Mr X had refused to provide further information. This included a lawful reason for being in the park. The instructions at the time were not to leave home or be outside your home except where there was a reasonable excuse to do so.
• There was no attempt to persuade Mr X to withdraw his complaint. Questions asked by the Council during the consideration of his complaint were to try and “ascertain as full a picture as possible”.
• Because of Mr X’s complaint, marshals would be reminded to turn their body worn cameras on during any incident when they felt threatened by a member of the public.

Assessment

8. We do not investigate all the complaints we receive. We use our Assessment Code to decide which cases we will investigate. We consider various tests, including the alleged injustice to the person complaining, if an investigation is likely to add anything to the response already provided, and if there is another body better placed to consider the complaint.
9. We will not investigate Mr X’s complaint because of the following:
• It is clear Mr X is concerned by what happened. But there is not enough evidence the matter complained about has caused Mr X a significant personal injustice. There have been no consequences from the photographs taken, and Mr X has no standing to complain on behalf of the other children he says the marshal’s actions put at risk. Mr X says the Council threatened him with a fine – but the Council did not fine Mr X.
• The Council has considered Mr X’s complaint and spoken with the marshals involved. There is a disagreement about exactly what happened, and it is unlikely we could resolve this. The Council has set out some changes because of Mr X’s complaint. It is unlikely we could add anything to the response Mr X has already received.
• The ICO is best placed to consider matters about data protection. It is the body set up by Parliament to consider such matters. If Mr X has concerns about the photographs being taken, and how the images are being stored and used, he should complain to the ICO. It is an expert, impartial body, and is in a better position than the Ombudsman to consider this issue.
10. For the reasons set out above an investigation by the Ombudsman is not appropriate.

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Final decision

11. We will not investigate Mr X’s complaint because:
• There is not enough evidence the matter complained about caused him significant personal injustice.
• It is unlikely we could add anything to the Council’s response.
• Concerns about data protection are best considered by the Information Commissioner’s Office.

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Investigator's decision on behalf of the Ombudsman