Summary: We cannot investigate this complaint about the Council’s failure to respond to an information request. This is because the request relates to matters which are in Tribunal proceedings and the law does not allow us to look such complaints. Additionally, there is another body better placed to investigate complaints about data protection matters.

The complaint

1. Mrs X says the Council has unnecessarily delayed providing her with a response to information she requested as part of a data subject access request. Mrs X says she needs this information as part of her appeal to a Tribunal relating to an Education, Health, and Care plan.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
3. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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 there is another body better placed to consider part of this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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

7. I considered information provided by the complainant and I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X said the Council has not responded to her request for information, which she needs as evidence to support her appeal to the Tribunal. We cannot investigate this complaint because the main issue has already been appealed and we cannot investigate the Council’s conduct during an appeal.
9. This includes anything Mrs X could have raised with the Tribunal at any stage of the appeal. The Tribunal has extensive case management powers and could require the Council to provide information it decides is necessary.
10. In any case, setting aside any aspects that may not be connected to Mrs X’s appeal, we would not ordinarily investigate a complaint about the Council’s actions relating to data protection matters, because the Information Commissioner’s Office (ICO) has extensive powers in this respect and could require the Council to comply with a request, which the Ombudsman cannot do.

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Final decision

11. We cannot investigate Mrs X’s complaint because the request relates to matters which are already part of Tribunal proceedings and there is another body better placed to investigate data protection matters.

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Investigator's decision on behalf of the Ombudsman