The Ombudsman's final decision
Summary: We will not investigate this complaint about safeguarding and other matters. The matters complained of are not separable from those that have been or could reasonably have been raised in a court of law, which we cannot investigate. Data matters are ones where the Information Commissioner’s Office would be better placed to investigate. The complaint is also late, and there would be no good reason to exercise discretion to investigate it now even if it were not otherwise outside the Ombudsman’s jurisdiction.
The complaint
Mr X complained the Council failed to safeguard his children and had failed to recognise and respond appropriately to parental alienation by his former partner. He complained the Council had wrongly shared data, and that it had wrongly restricted his full complaint.
The Ombudsman’s role and powers
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) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to 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) 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 or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint.(Local Government Act 1974, section 24A(6)) 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. (Local Government Act 1974, sections 26B and 34D, as amended) The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The documents Mr X sent us make frequent references to court action beginning in 2019. This action concerned his children. He maintained in correspondence that his former partner harmed their children and has alienated them against him. He was critical of some of the conduct of court proceedings. There is an absolute bar against us investigating matters which have formed part of court proceedings or could reasonably have done so. The matters Mr X complains of are not separable from the issues before the court, which were inevitably concerned with the suitability of the children’s parents to care for them.
Data matters, insofar as they are not already excluded by connection with the court process, are matters which the Information Commissioner’s Office (ICO) is better placed than us to consider. This is because it can impose penalties for data breaches, which we cannot.
Were the matters complained of not otherwise beyond our jurisdiction, they are also late, largely concerning events in 2019. We usually only consider late matters where the complainant was unaware of them at the time or unable to complain of them. Mr X was both aware of the matters he complains of and able to complain, as his correspondence shows.
Finally, Mr X’s complaint about how the Council has dealt with his complaint concerns matters outside our jurisdiction, either where we cannot investigate, or where we will not.
Final decision
We will investigate Mr X’s complaint because: The issues at the heart of the complaint are not separable from matters that either formed part of court proceedings, or could reasonably have done so, and which we cannot investigate; The ICO is better placed to consider possible data breaches; The complaint is late, and even if it was not otherwise outside our jurisdiction, there would be no good reason to exercise discretion to investigate it now; We cannot investigate complaints about complaint handling where the substantive matter is one we cannot investigate; and It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
Investigator's decision on behalf of the Ombudsman