Summary: We will not investigate Mr X’s complaint about the Council’s failure to include his views in an assessment. This matter is not separable from the decision of a court about where his children should live. He has a right to return to court it would be reasonable to use.

The complaint

1. Mr X said the Council failed to include his views in an assessment of his children. He said this made it more difficult for him when a court considered where they should live.

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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. 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)

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How I considered this complaint

6. I read Mr X’s complaint. I gave him an opportunity to comment on a draft decision.

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What I found

7. The Council wrote a report about Mr X’s children. When he complained, it accepted a social worker could have made more effort to contact him, and that his views did not appear in the assessment, which was later used in court.
8. Mr X said the assessment made it more difficult for him in court. I agree that was likely. But the matter of his views being omitted from the assessment would have been clear to the court. It could take account of that, and it could also have ordered the Council to carry out a fresh assessment if it saw fit.
9. Where a matter is not separable from one which has been or could reasonably be before a court, we will not investigate it.

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Final decision

10. We will not investigate this complaint. This is because the matter complained of is not separable from matters before a court, where Mr X has a right to return to court it would be reasonable to use.

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Investigator's decision on behalf of the Ombudsman