Summary: We will not investigate Mr and Mrs X’s complaint about safeguarding incidents involving Mr Y when he was a pupil at a special needs school and the Council’s actions in later years. We cannot investigate a complaint on behalf of Mr Y because he used his legal remedy against the Council at court. The complaint is made late. There is no significant injustice remaining which we can or should investigate.

The complaint

1. Mr and Mrs X complain for themselves and for their son Mr Y that the Council failed to properly investigate two incidents involving Mr Y when he was a pupil at a special needs school. Mr X says Mr Y was assaulted by staff in 2014 and was the victim of a crime. He says he could have been killed during a school trip in April 2016 and was the victim of negligence. He says the Council colluded with the police to cover up the assault and there was misconduct in a public office. He says the Council refused to release CCTV footage of the 2014 incident and documents. Mr X says the Council failed to fulfil its safeguarding obligations. He says the Council failed to properly investigate the family’s complaints in 2018 and interfered with an investigation about what happened. He says the family suffered distress and loss. He says although there was a personal injury claim at court, the service failures are a matter of public interest and need investigating.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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)
5. We cannot investigate complaints about action taken by or on behalf of the police in connection with the investigation or prevention of crime. (Local Government Act 1974, Schedule 5, paragraph 2, as amended)
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We normally expect someone to refer the matter to the Information Commissioner 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)
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

9. I have carefully considered Mr X’s information and comments and those by the Council. I have discussed the complaint with both parties. The Council has provided a copy of the County Court order.

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My assessment

10. I will not investigate this complaint for the following reasons:
11. The Ombudsman cannot investigate the complaint on behalf of Mr Y about the incidents in 2014 and 2016 and what followed. The complaint is outside our jurisdiction because Mrs X, acting as Mr Y's litigation friend, made a personal injury claim at court (see paragraphs 2 and 3 above). The County Court order confirms the settlement between the Council and Mr Y. The Council did not accept liability but agreed to make a substantial payment and pay court costs. The agreement is enforceable at court.
12. We will not investigate the claimed injustice to Mr and Mrs X. The County Court case or other legal action could have dealt with the impact on the family. This includes Mr X’s concern about a possible breach of human rights or negligence. I consider it reasonable for the family to have used or use their legal remedies.
13. We will not investigate the complaint handling of 2018 or earlier events. Mr X complained to the Ombudsman in 2022. Actions which he has known about before February 2021 are outside the Ombudsman’s jurisdiction being made outside the permitted period of 12 months (see paragraph 6). I will not exercise discretion to investigate because Mr and Mrs X could have complained sooner. Mr X has made several complaints to this office including before 2018 when the legal action started.
14. There is insufficient reason for the Ombudsman to investigate the Council’s consideration of what happened. We would not do so where a complaint is outside jurisdiction or in the absence of a significant personal injustice we can investigate. The Council says it considered safeguarding and health and safety issues arising from the case. If Mr X disagrees with the outcomes he may consider his legal remedies.
15. We cannot investigate the actions of the police or allegations of crime such as misconduct in a public office (see paragraph 5).
16. There is insufficient evidence of fault or injustice to investigate the Council’s handling of Mr X’s requests for the CCTV coverage of the 2014 incident and documents relating to the case. The evidence was relevant to the County Court claim last year. It was for the Court to decide if the Council should provide it. The Council says Mr X has made a large subject access request. It is reasonable for Mr and Mrs X to go to the Information Commissioner if they wish to obtain evidence or pursue a complaint about data protection or freedom of information (see paragraphs 7 and 8).

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Final decision

17. The Ombudsman will not investigate Mr and Mrs X’s complaint about safeguarding incidents involving Mr Y when he was a pupil at a special needs school and the Council’s actions in later years. We cannot investigate a complaint on behalf of Mr Y because he used his legal remedy at court. The complaint is made late. There is no significant injustice remaining which we can or should investigate.

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Investigator's decision on behalf of the Ombudsman