The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the child protection actions of the Council. The matters he complains of are matters he could have mentioned during court action, or are closely related to those matters. Some matters directly concern part of the court process, and we cannot investigate them.
The complaint
Mr X said the Council ignored his safeguarding concerns, gave false information to the Children and Family Court Advisory and Support Service (CAFCASS), failed to submit a court report, and failed to make adjustments for a neurological condition.
He said the result was him being separated from his child for six weeks, having to fight alone as a litigant in person, stress, and effects on his physical health. He wanted a greater remedy than that offered by the Council for matters it upheld.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B)) The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The issue at the centre of the complaint is child protection actions that Mr X said unjustly led to him being separated from his child and having to appear in court as a litigant in person. The injustice claimed by Mr X is the claimed result of alleged actions by the Council in matters that could reasonably have been mentioned in court proceedings. These include the Council’s allegedly unfair treatment of him, such as the alleged failure to make adjustments for neurodiversity. Other matters, such as the alleged non-submission of a report to court, would have been directly part of court action, and we cannot investigate them. That the Council may have found some fault with its own actions does not gainsay the legal restrictions that affect our ability to investigate.
Final decision
We will not investigate Mr X’s complaint because the matters he complains of are ones that were or could reasonably have been mentioned in court, or are closely related to them.
We cannot investigate matters that directly formed part of court proceedings.
Investigator's decision on behalf of the Ombudsman