The Information Commissioner has produced detailed guidance about the issues to be considered when publishing information to ensure that personal data is not disclosed. A copy of the full guidance can be found on the ICO website

8.1. The complainant and other individuals

Do not use the real initial for the complainant or anyone else involved in the complaint or the matters complained about.

Avoid using Mr/Mrs A as it can cause problems with spellchecker. You could use B for the first person you mention, C for the second and so on. Where the individual is a child or young person, just use an initial – no title is required. We should normally refer to all adults using their title (Mr/Ms/Miss/Mrs etc). However, in some circumstances, for example where someone has a preferred prefix (e.g. Mx) it would risk identifiability and where another term (e.g. Miss) would be incorrect, it may also be appropriate to refer to an adult as an initial – e.g. X. (See Appendix 5 - guidance for investigators on gender neutral decision statements.)

Inclusive language supports diversity and conveys respect. Our decision statements should only refer to someone’s race or ethnicity when it is relevant to the information we are communicating. (See Appendix 6 – Let’s talk about race – guidance on inclusive language.)

‘Mrs B complains that the council did not assess her mother’s social care needs. She says her mother, Mrs C, struggles to get up and down the stairs. The Council says that Mrs C already has grab rails installed and that these are adequate for Mrs C’s needs.’

Or:

‘The Council interviewed Mr B and his son, C. During the interview, C said that he had been with his mother, Mrs D and her partner, Mr E, when the window was broken at the house. The Council met with Mrs D and Mr E to discuss what they had seen.’

If the complainant comes from someone who is representing a local community interest or campaign group, we should not name that group. You could say something like:

“Mr B represents a community interest group and complains that….”

The standard draft decision cover letter includes a sentence about anonymity:

‘We publish our final decision statements on our website. We use false names so they do not reveal details that could identify people involved. If you are concerned that publishing our decision will identify you, or would like to ask me to make any changes to how I refer to you in the published decision please let me know as soon as possible.’

There is separate guidance on the intranet about the type of language to use in our decisions on complaints about Adult Social Care. Please also see the general information in our Writing Guidance and House Style guide, and guidance from the Parliamentary and Health Service Ombudsman about the language to use in our mental health casework.

8.2. The Body in Jurisdiction

We routinely name the Body in Jurisdiction in the statement, the only exception being where in adult social care provider cases an individual is likely to be identified and where we decide this is not proportionate (LGA 1974 s34H(8))

The naming of care homes and locations

The power to name a care provider is a discretionary one. It will generally be in the public interest to name a Part 3a care provider in our statements. This is because they are regulated entities, the details of which are already open to public scrutiny through bodies such as the CQC. There is also the element of consumer choice that exists in care markets and so it is important there is transparency about what our investigations show about their performance.

Where you write a statement under Part 3A about a private/independent sector care provider, it will generally be in the public interest to name the provider body (i.e. the high level legal entity) as the body in jurisdiction  e.g. BUPA, Worldwide Care etc but you should also name the ‘location’ where the care was delivered (i.e. the name of the care home or the trading name of the home care agency e.g. Sunny Bank Care Home, King’s Home Care Services). This will ensure that the correct legal entity is identified as the body in jurisdiction, as the legislation requires. You will then need to consider whether the statement should be published. Naming the location will then assist making sure any publicity is correctly targeted, particularly in cases where a provider is a large, multi-site company responsible for homes across the country. 

Where, in a Part 3 complaint, the Council commissions the care, and we identify fault in the actions of the care provider we will generally name the provider and location in the statement even though the body in jurisdiction is the (also named) Council. There may also be sound public interest reasons for naming a provider in cases where we have not found fault.

Schools

Where the body in jurisdiction is the council and the complaint relates to a specific school, we generally will not name the school. If more than one school is involved, use School 1, School 2 etc.

Trusts

Where the action complained of is by a trust which is acting on behalf of a council such as Children’s Trusts (where one is established to take over a failing children’s service department) you can name it within the body of the decision statement but should not amend the name of the body in jurisdiction at the top of the statement.

8.3. Naming individuals, contractors and other organisations acting on behalf of the Body in Jurisdiction

Our decisions hold bodies in jurisdiction to account for the actions of organisations acting on their behalf. We also sometimes need to refer to other organisations, not acting on behalf of the BinJ, that are relevant to the complaint.

Typically organisations we refer to are delivering services on behalf of the BinJ. This could include charities, care providers, companies and voluntary organisations. There are also organisations who provide professional, clinical or legal advice to BinJs – e.g. medical assessment agencies. We need to consider how the BinJ applies any advice it receives from another body, rather than us criticising the advice itself.

Our normal approach is not to name 3^rd party organisations (whether or not they are acting on behalf of the BinJ) in a way that makes them identifiable. For example should say “Company A provided the transport taking young person C to school” or where there are no other organisations to complicate matters simply “The council commissioned a company to provide home to school transport for child C”.

We may decide, however, there is a significant public interest in our naming the organisation in the decision statement. This will almost certainly only apply to organisations acting on behalf of the BinJ for the complaint.  In such cases we will still hold that BinJ to account for its actions. For example by saying something like “WasteCo, the waste company used by the Council, failed to respond to repeated concerns about its service”.

Where we do decide to name the organisation it must have an opportunity to comment on our draft decision.

This flowchart sets out the approach we expect to follow. 

Here are some examples where we have named third parties:

REPORT – 18103736 – Mrs X complained APCOA, the operator working on behalf of the Council, unfairly issued her with a parking ticket. She also complained about APCOA handled the case. In considering the complaint, we have identified APCOA is enforcing parking tickets using the wrong legislation and therefore the wrong process.

This report names a commercial provider of parking services to many councils. It found evidence of potentially systemic problems with the way APCOA worked and therefore the public interest test was met for naming the provider in the report.

20004719 Summary: There is some fault in how One Vision Housing, acting on behalf of the Council, dealt with Mrs X’s application for housing. OVH is not at fault in how it considered Mrs X’s medical evidence. Its failure to tell Mrs X about a change in her band was fault but did not cause her injustice. OVH sent a letter in error which caused avoidable confusion. It also signposted Mrs X’s complaint to the wrong ombudsman twice, putting Mrs X to significant time and trouble. The Council has agreed to apologise, pay Mrs X £350, and take action to improve its service.

OVH manages the housing register for the Council.

20000114b - Summary: Ms B complained about the way an integrated health and social care service- which includes a Council and four NHS Trusts- completed assessments to decide whether her child had autism. She also complained about delays in the assessment process and a failure to make reasonable adjustments. We found no fault in the way the integrated service, Camden MOSAIC, completed an autism diagnostic assessment. There was a two-month delay in the assessment process which caused limited personal injustice but led to service improvements. Camden MOSAIC also failed to follow up on a referral for a second opinion. There was a delay agreeing reasonable adjustments by one of the NHS Trusts and this caused Ms B injustice when accessing the service, but it has since improved. We recommend the NHS Trust apologise to Ms B. All the authorities within Camden MOSAIC should work together to improve the way referrals are followed up and monitored.

The named integrated services company is a jointly commissioned integrated service providing services for several NHS bodies and councils.

20008175 - This covers the multi-council owned company – Achieving for Children – which has featured in several complaints.

20005902 - This names a housing management company the council had a contract with to provide homelessness support services.

20003080 - Refuse collection is by a company – Bristol Waste Company – solely owned by the council

Identifying details and, exceptionally, real names should only be included if we decide it is in the public interest and necessary to do so. Decisions to name or use identifiable details should only be made in consultation with your Assistant Ombudsman or Assessment Manager.

Notes and Analysis or the decision statement must be used to record this discussion and set out why you have decided it is both in the public interest and necessary to do so

 

8.4 Officers

The LGA 1974 (Part III, s30 (3)) says we should not mention the name of any person in reports or use identifiable details that could be left out without affecting the decision. We can though consider whether it is in the public interest (and interest of others) to name someone or include identifying details in our decisions.

We should not generally use council officers’ job titles to describe them in our decision statements, unless they are at a senior level, for example the Chief Executive, or Head of Planning. You could use Officer J, Officer K, Officer L, for example, but do not use the correct initial. If you need to, where there is more than one council department involved, you can associate the officer with the department.

For example:

“Officer J from the Housing department met with Mr B in July. The following month, Officer K, from the Council’s Social Care team visited Mr B at his home to talk about help Mr B needed to wash and bathe himself.”
 

Or

Housing Officer J met with Mr B in July. The following month, Social Worker K visited Mr B at his home to talk about help Mr B needed to wash and bathe himself.”
 

The most senior council and care home staff should expect their posts carry a greater level of accountability and responsibility. For councils this will usually be the Chief Executive and Director level posts (often internally called ‘chief officers’). For care home staff, managers are named on the CQC website. It is generally reasonable therefore to identify the most senior council and care home staff using their job titles where this is in the public interest, and other affected persons’ interests. However, we must consider the nature of the information likely to be revealed and the nature of the position and responsibility of the person and position in question.

Investigators must always seek the advice of a casework manager (AO/AM) before deciding to use someone’s real name in a decision. They should also think carefully about using an easily identifiable job title in a decision. They must record in N&A or in the decision why this is in the public interest and necessary to do so. 

8.5. Councillors and MPs

We should not normally name councillors or MPs in our decisions. If the complainant is represented by their councillor or MP, or you need to comment on a councillor or MP involvement, you should just refer to them as ‘their local councillor’ or ‘their MP’. If there is more than one councillor involved, refer to them as Councillor B, Councillor C etc.

If, exceptionally, it is in the public interest and necessary to name a councillor, investigators must seek the advice of their casework manager (AO/AM) and record in N&A or in their decision their reasons for doing so

8.6. Addresses

We should not use abbreviated versions of street names. If you need to refer to a number of different properties in your decision statement, please use Property 1, Property 2 and so on. Or for a number of different streets, use Street 1, Street 2 etc.

If the complaint is about a specific development in an area that is being developed privately, we should not name it. You could say something like:

“Mrs B complains about a housing development in the area where she lives”

If it is a publicly funded development, you can name it. But you should consider whether doing so would risk making the complainant identifiable. Remember that planning consultation responses may be available online and so this could increase the risk of identifiability. For example:

“Mr and Mrs B complain about how the Council approved planning permission for Leeds Arena. could probably be rewritten as “… approved planning permission for an entertainment venue” without affecting the readability of the statement. 

8.7       Discretion to use real names and explaining our use of all aspects of our discretion in decisions

A judicial review of one of our decisions, whilst supportive of our actions, raised important issues for casework. The Administrative Court dismissed the claimant’s application for judicial review of our decision that it was necessary and in the public interest to include the name of the claimant, a former council leader, in our final decision.

Our decision in the case was of fault by the council in how it took a decision not to purchase a house to redevelop a site. We found there had been a lack of proper scrutiny and analysis in deciding to abandon the redevelopment.

Our final decision named the council leader as a party to the actions. This was our conscious and considered decision having had regard to the relevant legislation - Section 30(3) of the Local Government Act 1974 which says:

“(3) Apart from identifying the authority or authorities concerned, the report shall not — 

(a) mention the name of any person, or

(b) contain any particulars which, in the opinion of the Local Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report,

unless, after taking into account the public interest as well as the interests of the complainant (if any) and of other persons, the Local Commissioner considers it necessary to mention the name of that person or to include in the report any such particulars.”

Our actions in this case

We took several important steps to make, and to document making, our discretionary decision to name the councillor in this case:

• The draft decision explained “We have decided to name Councillor Ejiofor. This is because we consider it is in the public interest to do so”.
• The draft decision cover letter (to the council) explained we considered it particularly important the councillor had a chance to comment because we intended to name him
• The Ombudsman recorded, in the Notes and Analysis document for the case their reasoning that:

“Given the role played by the former leader, the impossibility of anonymizing his position, the seniority of his role, and the public interest in providing transparency and accountability around these events, I do consider it necessary to name him. The statement you have included in para 6 is helpful and sufficient to explain this decision. We should of course alert him to this, prior to publication, if we have not already. He should also see a copy of the draft, either through the Council if we are confident it will do that, or direct from us if we have any doubts.”

• After consideration by the BinJ the investigator made further notes in N&A about naming and the Director of Investigation then set out their reasons for concluding we should do so. They noted it would be easy in any case to find the individual through an internet search and it was “in the public interest for us to be transparent in the circumstances”

Summary of Judicial Review findings

The claimant, in summary, raised concerns we had failed to take his interests into account, failed to use the correct test of whether it was ‘necessary’ to do so, had not given sufficient opportunity for him to comment and had not given adequate reasons for our decision.

The Court found against the claimant on all grounds because, in summary:

• We had applied the correct tests. Although we referred at times separately to ‘necessity’ and ‘public interest’,  and some language we had used in documentation was not always as clear as it could have been, it was clear our decision making had considered both.
• We properly considered the former councillor’s interests as part of our decision making. A council leader could not expect confidentiality in any scrutiny of their official actions
• We had given proper opportunity to comment (with an express instruction on the Council to share with the individual)

We had explained our reasons – the SoR could have included the word ‘necessary’ (as well as ‘public interest’) but when taken together with what was said in notes and analysis, our reasoning was clear.

Key issues to remember when writing SOR

The Court’s findings support our guidance and application of this in practice. They do though serve as an important reminder of the importance of properly considering and documenting our reasoning for discretionary (and therefore challengeable) decisions of all kinds.  

Some of these decisions are so routine they can sometimes go unremarked. We need to ensure we explain our exercise of discretion and rationale for doing so either in the decision itself, or in notes and analysis, sufficient to be robust and clear. Although flagged in relation to naming, this argument equally applies to other aspects of discretion such as 26(B) ‘out of time’ decisions, or decisions about whether to issue a public report or adverse findings notice.

Often our standard paragraphs (Ombudsman’s role and powers) will provide enough clarity on the basis for a decision. We need to be sure the decision then contains enough content to explain the exercise of that discretion.

Our explanations should reference relevant legislation and our guidance and be framed accurately within the statutory framework. We will be reviewing our standard paragraphs with this in mind to ensure attempts to use plain English shorthand are not misleading or simplistic.

Most of the time a clear, case relevant explanation in the decision will be enough. Sometimes we may need to set out more thinking (for example where our thinking has changed during the investigation) in notes and analysis. This will vary from case to case and investigators are empowered to make these decisions, seeking advice as necessary.

Sometimes it will be important and proportionate to clearly set out our thinking in the (normally) published record in this way. In other cases – for example a decision whether or not to go to report on an issue – it will be more appropriate to explain in notes and analysis. The important point is we should record our thinking accurately and in sufficient depth to provide a robust record.

We should keep consideration of discretion under review, revisiting and reiterating our decisions at key turning points in the life of the investigation, especially where there are material changes.