Summary: We will not investigate Mr X’s complaint about how the Council handled his late mother’s personal data. That is because the Information Commissioner’s Office is better placed to deal with complaints about data protection. Mr X also complained about the Council’s wider actions in relation to safeguarding. This complaint is premature as it has not been through the Council’s complaint process. Mr X is unhappy in how the Council dealt with his complaint. We will not investigate this further as there is insufficient evidence of fault to warrant further investigation.

The complaint

1. Mr X complained on behalf of his late mother, Mrs X. He said the Council had breached data protection regulations when it viewed audio and video recordings of her that it received as part of a safeguarding referral. He said the Council also distributed that data to partner agencies. He said in viewing and distributing the above, the Council had violated his mother’s privacy.
2. Mr X also complained about how the Council conducted its safeguarding enquiries from April 2021 onwards. Mr X said the Council’s inappropriate use of safeguarding has interfered with Mrs X’s private life and resulted in her care provider withdrawing their support.
3. Mr X is also unhappy about how the Council investigated his complaint. He said the Council failed to investigate it properly, did not ask an appropriate officer to investigate and delayed in its complaint handling.

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The Ombudsman’s role and powers

4. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, and
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

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. The Council received video and audio recordings of Mr X’s mother as part of a safeguarding referral. On 3 October 2021 Mr X complained to the Council about its use of those recordings. He said his mother had not consented for the recordings to be made, distributed or processed by the Council. He specifically complained about the actions of a Council Officer (Officer A) in relation to Mrs X’s personal data. The Council responded on 1 November. It did not uphold his complaint.
9. Mr X was unhappy his complaint had been dealt with by the officer that had responded to previous complaints he had made. He said the Council had not considered his complaint properly. He said he wanted the Council to address Officer A’s conduct and data protection. He requested the legislation Officer A acted under when processing Mrs X’s personal data.
10. The Council responded within a fortnight. It confirmed the legislation it had acted under. It said it shared the nature of the safeguarding concerns with partner agencies but not the recordings.
11. Mr X subsequently complained to the Ombudsman that the Council had breached data protection legislation and more widely about the Council’s conduct in relation to its safeguarding enquiries.
12. We will not investigate Mr X’s complaint that the Council has breached General Data Protection Regulation (GDPR) as it is reasonable for Mr X to complain to the Information Commissioner’s Office (ICO). The ICO is best placed to deal with complaints about breach of GDPR.
13. Mr X’s complaints about the Council’s wider actions in relation to how it conducted its safeguarding enquiries from April 2021 onwards are premature. His complaint to the Council focused upon data protection issues, not his wider concerns about the safeguarding enquiry itself. As he has not made these complaints to the Council it has not investigated or responded to his concerns. It is reasonable for Mr X to complain to the Council and allow it an opportunity to respond before it is considered by the Ombudsman.
14. We will not investigate Mr X’s complaint about how the Council responded to his complaint. It responded within twenty days and was considered by an appropriate officer. Therefore, there is insufficient evidence of fault to warrant further investigation. As stated in paragraph 13, if Mr X is unhappy with the response, it is reasonable for him to complain to the Information Commissioner’s Office.

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Final decision

15. We will not investigate Mr X’s complaint because the Information Commissioner’s Office is best placed to deal with complaints about data protection. His complaints about how the Council completed its safeguarding enquiries are premature.

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Investigator's decision on behalf of the Ombudsman