Summary: We will not investigate this complaint about a data protection breach. This is mainly because it is reasonable to expect Mr X and Mrs Y to take court action.

The complaint

1. Mr X and Mrs Y complain the Council shared their personal data with a third party, despite Mr X and Mrs Y explicitly refusing consent for the Council to do so. They also complain about the the amount of compensation the Council offered and the Council’s handling of their case, including its complaint-handling and it’s not writing to one of the complainants.

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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 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

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

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by the complainants.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. Mrs Y complained to the Information Commissioner. As the Information Commissioner is the better-placed body for such complaints, and as it has already decided there was a data breach, an investigation from the Ombudsman is unlikely to achieve anything further.
7. The Council accepted it had committed a data protection breach and offered compensation. However, Mr X and Mrs Y do not consider this compensation offer satisfactory. Only a court can compel the Council to award Mr X and Mrs Y damages greater that the compensation offered. The Information Commissioner advised Mrs Y of her right to pursue damages in court. The law expressly provides this route for remedy, so we normally expect people to use it. The possible cost of court action does not make it unreasonable for Mr X and Mrs Y to pursue damages, as they can also ask for their costs if their court action is successful. I see no reasons why it would be unreasonable to expect Mr X and Mrs Y to take court action.
8. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. So, we will not investigate the Council’s handling of this complaint or its communications about the matter.

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Final decision

9. We will not investigate this complaint. We could not achieve more by investigating whether there was a data breach, as the Information Commissioner has decided that point. It is reasonable to expect the complainants to take court action if they want more compensation. It would be disproportionate to investigate the Council’s communications and complaint-handling in isolation.

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Investigator's decision on behalf of the Ombudsman