Summary: We will not investigate this complaint about the Council’s handling of Miss X’s complaints. We cannot investigate complaint handling in isolation where the substantive matters of the complaint are ones we could not investigate. The substantive matters are ones that either directly formed part of court action, or could reasonably have been raised in court proceedings. We also could not investigate earlier matters from 2020 robustly even if they were unconnected to the court action.

The complaint

1. Miss X said:

• The Council had for a second time failed to disclose documents to an investigator during the complaints process, despite a Stage 3 panel finding fault with the previous Stage 2 investigation.
• The Council colluded with another person to take her children. She said that the matters went to court, but that the children remained with her.
• The Council excluded her and failed to tell her what was going on and excluded her from meetings.
• Her son has been neglected in the care of another person.

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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 about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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))
6. 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)
7. 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)).

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).

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. The legal ruling mentioned in paragraph 7 above prevents us investigating how the Council dealt with a complaint about any matter that is itself outside our legal powers.
11. Miss X said an attempt by the Council to remove her children was defeated in court. The complaint correspondence provided by the Council refers to court action regarding her children on two or possibly three occasions in the past three years or so. At least one of these references directly addressed the conduct of court matters in the form of who would write documents for the court. The remaining actions of the Council, as referred to in the complaint correspondence, all relate to who is best placed to care for Miss X’s children. That is a matter only a court could decide. We cannot consider whether the Council should have attempted to remove Miss X’s children as the involvement of the court engages a the legal bar referred to in paragraphs 3 to 5 above.
12. Even if this legal bar did not exist, we would not investigate matters from 2020, which make up about half of the matters in the complaint to the Council. This is because, even if we were able to exercise discretion to consider older matters, the departure of staff in the intervening period would make it unlikely that we could conduct a robust investigation almost five years on.

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Final decision

13. We cannot investigate Miss X’s complaint because:

• The substantive matters underlying her complaint either directly refer to, or are closely connected to court proceedings concerning her children, in that they could reasonably have been raised in court;
• We cannot investigate the Council handling of a complaint which is itself outside our legal powers; and
• Even if the previous two points did not apply, we could not conduct a robust investigation of matters from 2020.

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Investigator's decision on behalf of the Ombudsman