Summary: We will not investigate this complaint about the Council adding the complainant to its Employee Protection Register. There is not enough evidence of fault in the way the Council reached its decision, and the Information Commissioner is better placed to consider data protection matters.

The complaint

1. Mr X complains about the way he has been treated by staff when contacting the Council over the last two years, which culminated in him being added to its Employee Protection Register (EPR).

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The Ombudsman’s role and powers

2. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

3. With regard to the first bullet point above, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. And in relation to the final bullet point, we normally expect someone to refer the matter to the Information Commissioner (ICO) 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)
5. Finally, 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)

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How I considered this complaint

6. I considered:
• information provided by Mr X and the Council, which included their correspondence regarding the entry on the EPR.
• The Council’s ‘Employee Protection Register Policy and Guidance’ document.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. The time restriction detailed in paragraph 5 would apply to any parts of the complaint about issues which Mr X has been aware of for more than 12 months prior to contacting the Ombudsman. I see no good reasons to exercise discretion to consider any such matters now.
9. And even of this time restriction did not apply, whilst I appreciate Mr X might be very unhappy about the Council adding him to its EPR, the Ombudsman does not act as an appeal body or overrule Council decisions. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the Council made.
10. I consider there is not enough evidence of fault, in the way the Council reached its decision to add Mr X to the EPR, to justify starting an investigation into this part of the complaint. The Council has followed the process detailed in the EPR guidance, and it corrected errors in the initial notice before reaching a decision on Mr X’s appeal. I also note that his inclusion in the EPR does not restrict Mr X’s ability to access Council services.
11. If Mr X believes the Council holds incorrect information about him, or has breached data protection rules, then we would normally expect him to pursue the matter with the ICO, due to its expertise in dealing with such issues.
12. We also could not achieve one of the outcomes Mr X is seeking, as we could not recommend the Council take disciplinary action against its staff.

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Final decision

13. We will not investigate Mr X’s complaint primarily because there is not enough evidence of fault in the way the Council decided to add him to the EPR, and the ICO is better placed to consider data protection matters.

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Investigator's decision on behalf of the Ombudsman