The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the conduct of the Council in a child protection matter. The matters complained of are not separable from decisions about who should care for his children. Where this has already been decided by a court, we are legally prevented from investigating. And only a court could order the return of Mr X’s children that he has said he desires. Therefore, it would be reasonable for Mr X to go to court to seek the outcome he desires.
The complaint
Mr X said the Council had ignored his complaints and he was taking it to court about specific matters. He said the Council had violated his right to a family life and lied on formal paperwork. He said he wanted significant compensation and his children returned to his family as well as the Council being referred to an official body.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) 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) 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))
How I considered this complaint
I considered information provided by the complainant and considered the Ombudsman’s Assessment Code.
Matters relating to housing are subject to a separate complaint we have received (23 018 307). Therefore, I have not considered housing matters here.
My assessment
The complaint correspondence Mr X sent show that matters concerning children’s services centre on decisions by the Council leading to a child protection plan and the eventual removal of his children. Mr X’s view is that the Council acted with fault in what it did and should return his children. However, we cannot take any view on that or recommend any remedy because only a court can decide where children should live when this is disputed. As the only option available to achieve family reunion is via a court, it would be reasonable for Mr X to take that route. We cannot act in an auxiliary role to a court. Matters of how Mr X was treated by a social worker during the assessment process that led to the removal of his children are not separable ones we can investigate, as they were ancillary to the disputed decision. If Mr X has already taken court action against the Council, we cannot investigate related matters even if the action did not lead to the full remedy he was seeking.
Final decision
We will not investigate Mr X’s complaint because: The matters he complained of are not separable from matters where he has a right to go to court it would be reasonable to use; and Where he may already have taken court action, we cannot investigate these matters.
Investigator's decision on behalf of the Ombudsman