The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint the Council has issued an education and health care plan containing inaccurate personal information about Ms Y and without her consent. There is insufficient injustice. Mrs X can go to the Information Commissioner if she has data protection concerns. We cannot lawfully investigate the substance of the education health care plan because there is an appeal to the Special Educational Needs and Disability tribunal.
The complaint
Mrs X complains for her daughter Ms Y the Council gathered information for an education and health care plan (EHC plan) without Ms Y’s informed consent and contrary to data protection requirements. Mrs X says the EHC plan contains incorrect information saying Ms Y is a child in need when she is now an adult. Mrs X says the EHC plan was sent to third parties. Mrs X wants the Council to remove the inaccurate information from the EHC plan.
The Ombudsman’s role and powers
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: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
How I considered this complaint
I considered information provided by the complainant including the complaint correspondence.
My assessment
I will not investigate this complaint for the following reasons: The Ombudsman investigates fault causing injustice. There is no injustice. The Council has acknowledged that Ms Y is an adult and says when the EHC plan was produced she was a child in need. It has said there was no intention to treat the situation as a safeguarding concern.
Mrs X says the Council has breached data protection rules. She may reasonably take such a complaint to the Information Commissioner (see paragraph 3 above).
We cannot lawfully investigate the EHC assessment or plan or actions relating to it because Mrs X/Ms Y has used the right of appeal to the Special Educational Needs and Disability Tribunal (see paragraphs 4 and 5).
Final decision
The Ombudsman will not investigate Mrs X’s complaint the Council issued an education and health care plan containing inaccurate personal information about Ms Y and without her consent. There is insufficient injustice. Mrs X can go to the Information Commissioner if she has data protection concerns. We cannot lawfully investigate the substance of the education health care plan because there is an appeal to the Special Educational Needs and Disability tribunal
Investigator's decision on behalf of the Ombudsman