The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s response to her request for copies of Ms Y’s records. This is because the Information Commissioner’s Office is the appropriate body to consider her complaint.
The complaint
The complainant, whom I shall call Mrs X, complains about the Council’s response to her request for copies of Ms Y’s care and visitor records.
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 an investigation if we decide there is another body better placed to consider this complaint, (Local Government Act 1974, section 24A(6)) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
How I considered this complaint
I considered information provided by the complainant. I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X is the executor of Ms Y’s estate.
Mrs X complains about the Council’s, and care home’s, response to her request for copies of Ms Y’s care and visitor records from her Council arranged care home placement. The Council told Mrs X it did not hold these records as they were provided to the police. Mrs X says the police do not hold the records.
Final decision
We will not investigate Mrs X’s complaint because this is a matter best considered by the Information Commissioner’s Office where there is a right of appeal against its decision to the First Tier Tribunal which it is reasonable to expect Mrs X to use.
Investigator's decision on behalf of the Ombudsman