Summary: We will not investigate this complaint about the Council’s actions following the raising of an allegation. Who Mrs X’s grandchild lived with was a matter for a court to decide. Investigation of poor communications and disrupted contact would be unlikely to add to the Council’s own investigation or lead to a different outcome.

The complaint

1. Mrs X said the Council should have placed their grandchild with a member of the family when an accusation was made against the child’s father’s girlfriend. She said the family had had poor communication from the Council that had disrupted contact, and they had thought they might never see the child again.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
3. 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)
4. 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)
5. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. Any dispute about where a child lives after a relationship breakdown is a matter for a court. Any dispute about where the Council placed Mrs X’s grandchild could only have been resolved in court.
9. The Council accepted some of its communication was poor, resulting in uncertainty and causing offence to members of the family. It apologised, had a meeting with the case social worker to address what went wrong, and made sure all team managers were aware of the correct practice to follow. It also offered Mrs X a token amount for the injustice caused. We would be unlikely to recommend significantly more if we had reached the same findings.

Back to top

Final decision

10. We will not investigate Mrs X’s complaint because:

• We cannot investigate the matter of with whom a child should live, which was and is for a court to decide; and
• Investigation of the poor communications and disrupted contact is unlikely to add to the Council’s previous investigation or lead to a different outcome.

Back to top

Investigator's decision on behalf of the Ombudsman