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London Borough of Brent (20 006 772)

Category : Children's care services > Friends and family carers

Decision : Not upheld

Decision date : 10 Oct 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council acted outside of its powers by paying a court fine for him without his consent and without contacting him before doing so. He says this is unlawful and is aggrieved that the Council has not acknowledged that. I consider that the Council has acknowledged it acted with fault and offered an appropriate remedy to acknowledge any injustice. I am discontinuing this investigation as I cannot achieve the outcome Mr X wants.

The complaint

  1. Mr X complains that:
  • The Council paid a fine to a court for school absence without first consulting him and without obtaining his consent to do so. He says this was illegal.
  • The Council has failed to acknowledge that its actions were illegal.
  • The Council has failed to acknowledge that it should not have paid the fine in the first place as Mr X says he was wrongly fined.
  • The Council’s actions are indicative of its general lack of support for him and his wife as foster carers.

The Ombudsman’s role and powers

  1. 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)
  2. 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:
  • any injustice is not significant enough to justify our involvement, or
  • we could not add to any previous investigation by the organisation, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants,
  • there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

  1. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I reviewed the documentation on file and spoke to Mr X.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Mr X complained about a number of issues to the Council, two of which I have not looked at. I have addressed why at paragraph 26.
  2. The main issue Mr X asked the Ombudsman to investigate was about a fine that the Council paid to a court on his behalf but without his consent.
  3. Mr X is a foster carer. He had been fined for not taking a child in his care to school for a period of time. He said the court told him the period was from June to late July 2019.
  4. The Council says the fine was initially £68 but, as Mr X had not responded to numerous notices, it had increased to more than £1000. Mr X says that he did not receive notice of the fine or of any court hearing.
  5. Mr X wrote to the Council to tell them he disputed the fine and that he would be taking legal advice. He said the child had only missed one week of school and this had been authorised.
  6. The Council says it paid Mr X’s fine in order to stop bailiff action against him. It said it had made enquiries of the school and determined that absence had not been authorised. The Council sent a letter to Mr X to inform him of this and that he would have to reimburse the Council through his fostering allowance payments.
  7. Mr X says the Council should not have paid the fine. He said he was not liable for the fine and felt that the Council’s payment had amounted to an admission of guilt on his behalf.
  8. The Council accepts that it should have informed Mr X before paying the fine. It apologised for not discussing the case with him.
  9. It says it has not deducted any money from Mr X’s fostering allowance.
  10. Mr X says that the Council has not specifically acknowledged that it acted outside of its powers by paying the fine on his behalf.
  11. The Council has offered to pay Mr X £500 in recognition of the fault it accepts in relation to this issue and in relation to the fault it also accepted in another issue, addressed at para 26.
  12. It did not say whether it considered the fine should have been imposed or not. It said that was a matter for the courts.
  13. Mr X says the Council should accept that it should never have paid the fine and that it was illegal for it to do so.

Analysis

  1. The Council has accepted it took the wrong approach. Mr X says it should also accept that it acted illegally in paying his fine. He says the Council should have made further enquiries about the fine. If it had, he says, it would have discovered that the fine should never have been imposed. He wants the Council to acknowledge the same.
  2. The Council is right that it cannot make a finding on whether the fine was appropriate or not. Court proceedings had started and it was for the court to determine any such issue.
  3. It is not for the Ombudsman to make declarations about whether the Council’s actions in paying the fine were legal or not. We make findings of maladministration. We do not make findings about legality.
  4. It would be within our remit to find the Council at fault for stepping outside its jurisdiction. However, the Council has already offered to remedy any injustice caused by its actions by paying Mr X £500. While Mr X is not satisfied with this offer (and I understand has refused it), even if the Ombudsman found the Council to be specifically at fault for paying the fine, we would not recommend a payment higher than that has been offered already to Mr X. Although Mr X says he is not concerned with financial injustice, I also note that Mr X has not been caused any financial injustice. The Council has not deducted any money from his fostering allowance and the impression I have from its final response to Mr X is that it does not intend to do so.
  5. The Ombudsman has to conduct proportionate investigations and use our resources carefully. I do not consider it to be proportionate to continue this investigation for the reasons set out in my para 3 above. The Council has admitted it erred and offered a remedy. I do not consider I can add anything more.

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Final decision to discontinue

  1. For the reasons set out above I have decided to discontinue this investigation.

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Parts of the complaint that I did not investigate

  1. Mr X also complained about a phone call with a social worker when the parties were arranging a special guardianship assessment. I consider the Council has addressed the issues sufficiently in its final response to Mr X and it would not be proportionate for me to consider further as I do not consider further investigation would lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman

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