Summary: We will not investigate Mrs X’s complaint about a data breach. This is because there is not enough evidence of fault to justify investigating and there is another body better placed to consider this complaint.

The complaint

1. Mrs X complained the Council failed to accept her Lasting Power of Attorney (LPA) when she made a complaint on behalf of her husband, Mr X regarding a potential data breach. She said the Council denied her access to Mr X’s mental capacity assessments.
2. She stated this caused avoidable distress, made it harder to manage Mr X’s affairs, and eroded her trust in the Council’s ability to protect his data or support her as his caregiver.
3. She wants the Council to:
• investigate the data breach;
• provide her with the requested documents;
• improve communication with complainants;
• apologise for the avoidable distress it caused; and
• assign a different social worker to Mr X ‘s case.

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The Ombudsman’s role and powers

4. 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 not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. Mrs X has LPA for Mr X.
9. Mrs X complained the Council shared a court-ordered document with Mr X’s daughter, which she said was a data breach by the Council. The Council rejected her complaint made on Mr X’s behalf, stating that Mr X had capacity to make decisions. As a result, the Council required Mrs X to obtain his consent to submit the complaint on his behalf. The Council also noted that, as part of his mental capacity assessment, Mr X had explicitly expressed his wish for his daughter to be involved in his care.
10. The Council considered Mr X’s mental capacity assessment when determining whether Mrs X could make a complaint on his behalf. It concluded that Mr X had capacity to consent to Mrs X making the complaint. It also considered his wishes for his daughter to be involved in his care. There is not enough evidence of fault in how the Council dealt with this complaint to justify our involvement.
11. If Mrs X remains unhappy about the Council’s decision not to investigate her complaint about the alleged data breach or about denying her access to the mental capacity assessment, it is reasonable for her to refer the matter to the Information Commissioner’s Officer (ICO). The ICO deals with data protection matters and subject access requests. Therefore we will not investigate this part of Mrs X’s complaint.

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Final decision

12. We will not investigate Mrs X’s complaint because there is not enough evidence of fault to justify investigating and there is another body better placed to consider this complaint.

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Investigator's decision on behalf of the Ombudsman