Summary: We will not investigate Mr B’s complaint. This is because it is unlikely we would achieve a different outcome for Mr B on the scaffolding issue and it is not unreasonable to expect him to raise the data protection issue with the Information Commissioner.

The complaint

1. The complainant, Mr B, complained about the way the Council dealt with temporary scaffolding outside his business premises and about a subsequent breach of confidentiality.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

3. 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

4. I have considered the information Mr B provided and the Council’s published process for temporary scaffolding on public highways. I gave Mr B an opportunity to comment on my draft decision. I considered his comments before making a final decision.

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What I found

5. Mr B told us a council officer informed him temporary scaffolding outside his premises was on council land so he would have to pay a fee. He said the officer then told him he could offer a bribe for the issue to go away. Mr B said he complained in confidence about a neighbouring business when it erected similar scaffolding but the Council disclosed his name to the other business.
6. Mr B said to us the Council had breached his confidentiality and questioned his good name. He told us the scaffolding encroachment onto council land was minimal. He is seeking £5000 compensation from the Council.
7. When Mr B complained to the Council he attached an image of the officer involved and an image of the scaffolding. He explained the scaffolding was needed for a temporary period of less than two hours but he had to pay the Council over £1,000. He said, although he was out of the country at the time, he had spoken to the Council’s officer who had sought a bribe from him. He gave the Council a copy of the highways land search.
8. In its final response to Mr B’s complaint the Council said it had reviewed all the evidence. It said there was no evidence to support his complaint of inappropriate behaviour by the officer involved in the scaffolding issue. The Council said the structure did encroach onto the highway, it was not solely on private property. The Council said contractors had applied for a licence for the temporary structure and had agreed a licence was needed. The Council refuted Mr B’s claim that its officer had shared information he should not have shared with a third party. It said it had investigated his complaint but, other than “verbal testimony”, he had not provided evidence which had supported it.
9. Mr B does not accept the Council’s response to his complaint. He said the Council refused to listen to his protestations, refused to investigate his bribery claim and wanted to close all discussion. He said the Council failed to investigate objectively, independently or make sufficient efforts to establish what happened. Mr B said he did not know who was dealing with his complaint at the final stage of the complaint process. That meant he did not know who to contact to discuss his concerns and to find out how to provide further supporting evidence. Mr B said the Council failed to contact him before issuing its final response to his complaint or to contact two witnesses.
10. It is unlikely we would achieve a different outcome for Mr B if we investigated his complaint about the officer’s behaviour when dealing with the scaffolding issue. We have no means to safely establish exactly what was said during the officer’s conversation with Mr B.
11. If Mr B wishes to pursue his data protection complaint, it is not unreasonable to expect him to raise the matter with the Information Commissioner. That is because this is the body with the relevant powers and expertise to consider data protection concerns.
12. We would not investigate a complaint about failings in the Council’s complaint process when we are not investigating a complaint about matters which gave rise to the complaint.

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Final decision

13. We will not investigate this complaint. This is because it is unlikely we would achieve a different outcome for Mr B on the scaffolding issue and it is not unreasonable to expect him to raise the data protection issue with the Information Commissioner.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman