The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s actions concerning Mr X and his child that he says amounted to libel and defamation. The matters complained of are not separable from matters that formed part of court proceedings. Mr X is also seeking the imposition of a significant financial penalty, which only a court could imposer if it found there was liable or defamation. It would therefore be reasonable for Mr X to take this matter to court. Finally, only a court or the information Commisioner’s Office could order the disclosure of documents.
The complaint
Mr X said the Council made false accusations that he was a risk to children in documents passed to the family court. He said he had to fight for two years for contact with his child. He said the statements were defamatory and he wanted a substantial financial penalty imposed on the Council. He said the sum the Council has offered him is inadequate. He said the Council is also withholding information that shows what it did was wrong.
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 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) 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 another body better placed to consider this complaint.(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In responding to Mr X’s complaint, the Council accepted there was fault in its actions, including the terms in which it referred to Mr X in documents sent to a court, and in failing to contact him when his child needed to move after the death of Mr X’s ex-partner.
However, that the Council sent documents to the court containing information about Mr X, even though it has since accepted this was wrong, means we cannot investigate the complaint about what was sent. That also applies to the actions connected to the opinions formed by the social worker who wrote the documents. So, we cannot investigate the failure to contact Mr X, who had parental responsibility for the child, as it is closely linked to the view of Mr X formed by the social worker and passed on to the court. This is because an absolute bar prevents us investigating matters that were or could reasonably have been raised during court proceedings, which includes the submission of documents even where no hearing takes place. The absolute bar remains in place after the conclusion of the proceedings.
Mr X is seeking a finding that he was libelled by the Council and that it defamed him. He is seeking a significant financial penalty against it. However, only a court can decide if a matter is libel or defamation, and only a court can impose a penalty of the kind he is seeking. We have no legal authority to do this. Therefore, it would be reasonable for Mr X to go to court to achieve the finding and remedy he is seeking.
Finally, matters of data disclosure are either for a court or the Information Commissioner’s Office to order. We lack the same powers.
Final decision
We cannot investigate Mr X’s complaint because: The matters complained of are not separable from matters that formed or could reasonably have formed part of a court process; It would also be reasonable for Mr X to use his right to go to court to seek a finding of libel or defamation and to seek a substantial penalty as only a court could achieve these outcomes; and The ICO is better placed than us to consider matters of data disclosure as it has powers to order this that we lack.
Investigator's decision on behalf of the Ombudsman