Summary: The Ombudsman will not investigate Mr X’s complaint the Council issued him with penalty charge notices for his children’s non-attendance at school. This is because we cannot achieve the outcome he wants. Also, if Mr X wanted to challenge the Council’s decision, he could have done so in court.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council issued him with penalty charge notices for his children’s non-attendance at school. Mr X says there were good reasons he took his children out of school. He also questions if the Council has properly followed its own process for issuing penalty charges. Mr X wants the penalty charges cancelled.

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The Ombudsman’s role and powers

2. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

3. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

4. The procedure for a Council to enforce against non-attendance at school is for it to issue a penalty notice. If a parent accepts the penalty and pays it, the Council need take no further action. If the parent disputes the penalty by not paying it, the Council must prosecute the offence in the magistrates’ court. Only the Court can consider any evidence put forward in defence and then decide whether the parent committed the offence. The Ombudsman can do neither. (Education Act 1996, sections 444 and 444A)
5. If Mr X believed the penalty charges were not justified, or had not been correctly issued, he could have put forward an argument in court if the Council had pursued a prosecution. There is no dispute over whether Mr X took his children out of school. But there is dispute about the merits of the Council’s decision, and if it followed the proper process. The Court was in the best place to decide the merits of the opposing arguments, as the law provides. But, by paying the penalty charges, Mr X denied himself the opportunity to challenge liability in court – this was Mr X’s decision. The Ombudsman cannot now ask the Council to cancel the charge and so an investigation by the Ombudsman is not appropriate.

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Final decision

6. The Ombudsman will not investigate Mr X’s complaint. This is because we cannot achieve the outcome he wants. If Mr X wanted to challenge the Council’s decision he could have done so in court.

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Investigator's decision on behalf of the Ombudsman