Summary: The Ombudsman will not investigate Mr X’s complaint about penalty charge notices for his children’s non-attendance at school. This is because if Mr X wanted to challenge the fines he could have done so in court. An investigation into the Council’s handling of his complaint is not warranted. This is because there is not enough evidence of fault causing injustice, and we cannot achieve the outcome Mr X wants.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council issued penalty charge notices for his children’s non-attendance at school. Mr X says the decision to take the children out of school was taken by their mother, but the Council still considers Mr X to be liable. Mr X is unhappy with the way the Council dealt with his complaints. He feels staff did not listen to his concerns. Mr X would like the staff who dealt with his complaints investigating.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• we cannot achieve the outcome someone wants.

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

3. 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

4. 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

5. 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)
6. In its responses to Mr X’s complaints, the Council has explained he was jointly liable for the fines because he has parental responsibility for his children. If Mr X believed the penalty charges were not justified, had been incorrectly issued, or he was not liable, he could have put forward an argument in court. The Court was in the best place to decide the merits of any opposing arguments. But, the penalty charge has now been paid, and so Mr X has denied himself the opportunity to challenge liability in court. The Ombudsman cannot now ask the Council to cancel the charge.
7. Mr X is unhappy with how the Council has dealt with his complaints. The Ombudsman will not normally investigate a council’s complaint handling if we are not going to investigate the issue which led to the original complaint. This is because there is not normally enough injustice from failings in the complaints process to warrant an investigation. This applies here. We also have no powers to recommend staff are disciplined or subject to additional training. These are decisions for individual councils. The Council has accepted that one of its responses to Mr X could have been more detailed, but it is difficult to see what more we could achieve. An investigation by the Ombudsman is not therefore appropriate.

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Final decision

8. The Ombudsman will not investigate Mr X’s complaint. This is because Mr X could have challenged the Council’s decision to issue penalty charge notices in court. An investigation into the Council’s complaint handling is not warranted because there is not enough evidence of fault causing injustice, and it is unlikely we could add anything to the Council’s response.

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Investigator's decision on behalf of the Ombudsman