The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint the Council issued him with a penalty charge notice for his child’s non-attendance at school. This is because Mr X’s wife has paid the fine and we cannot achieve the outcome he wants. Also, if Mr X wanted to challenge the Council’s decision, the court was in the best position to consider his defence.
- The complainant, whom I shall call Mr X, complains the Council issued a penalty charge notice for his child’s non-attendance at school. Mr X says there were good reasons he took his child out of school. Mr X’s wife paid the fine but he wants the money refunded.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- 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.
What I found
- 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)
- If the Council had pursued a prosecution for non-payment of the fine, then Mr X could have put forward an argument in court. There is no dispute over whether Mr X took his child out of school. The court was in the best place to decide the merits of the opposing arguments. But, by paying the penalty charge, Mr X’s wife has forfeited the opportunity to raise a defence in court. When she paid the fine, Mr X’s wife effectively accepted the penalty. The Ombudsman has no powers to ask the Council to cancel the charge and so an investigation is not appropriate.
- The Ombudsman will not investigate Mr X’s complaint. This is because we cannot achieve the outcome he wants.
Investigator's decision on behalf of the Ombudsman