The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about an education team referral to the child protection team. The referral is more than 12 months ago and the Information Commissioner’s Office is better placed to consider her complaints about an inaccurate document.
The complaint
The complainant, whom I shall call Ms X, disagrees with an education officer’s decision to refer her family to the Council’s child protection team and says the referral contained inaccurate information.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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 this complaint. (Local Government Act 1974, section 24A(6), as amended) 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)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X says a Council SEND officer gave the Council’s child protection team, “factually inaccurate and misleading information in an attempt to trigger a social services investigation”.
The Council say the information was passed in October 2021 and Ms X knew about this at the time. She did not complain to the Council until early November 2022. She says the Council took 19 weeks to reply to her subject access request for information about the referral causing a delay to her complaint.
Ms X would not need the subject access request documents to know whether she agreed with the referral. We cannot investigate the referral decision. Ms X has known about it for more than 12 months and there are no good reasons the late complaint rule should not apply.
Ms X says the subject access request shows the referral detail and she believes it is inaccurate.
Ms X has the right to request records are ‘rectified’. This means any factual inaccuracies are corrected. If the Council refuses to do so, she can complain to the Information Commissioner’s Office (ICO). Parliament set up the ICO to consider data protection disputes which includes ‘right to rectification’ disputes. The ICO are better placed than us to consider if the Council should change its records particularly because there are complex exemptions for child protection case files.
The ICO is also better placed to consider her allegation the information should not have been passed from the education team to the child protection team.
Final decision
We will not investigate Ms X’s complaint because it is partly too old and partly because the ICO is better placed.
Investigator's decision on behalf of the Ombudsman