London Borough of Harrow (19 013 608)
The Ombudsman's final decision:
Summary: Mrs X complains about a penalty charge notice for her child’s non-attendance at school and the Council’s claim for its associated legal costs. The Ombudsman will not investigate her complaint. This is because if Mrs X wanted to challenge the Council’s prosecution and claim for costs then she should have done so in court. The Ombudsman has no powers to investigate decisions taken by a court or which have been discussed in court.
The complaint
- Mrs X complains the Council prosecuted her because of her child’s non-attendance at school. Mrs X says the Council did not follow its own process in deciding to issue a penalty charge notice. During legal proceedings the Council asked the Court to award its costs. Mrs X complains the Council has exaggerated its claim for costs and it is much higher than in similar cases.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- 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 Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her 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)
- The Council issued a penalty charge notice because Mrs X took her child out of school for ten days. The matter proceeded to court when Mrs X did not pay the penalty. Mrs X says the Council did not follow its own process in deciding to issue the penalty charge notice. During legal proceedings the Court awarded the Council its costs. Mrs X complains the Council has exaggerated its claim for costs and is much higher than in similar cases.
- In correspondence with Mrs X the Council has explained the Court decided she was guilty of the offence and awarded the Council its costs. The Council has said that because these decisions were taken by the Court, it will not consider her concerns under its complaints process.
- If Mrs X believed the penalty charge notice was not justified, or had not been properly issued, then she could have raised her concerns in court. There is no dispute over whether Mrs X took her child out of school. But the Court was best placed to decide the merits of the opposing arguments, as the law provides.
- As explained in paragraph 2, we have no powers to investigate decisions taken by a court or what happens in court. The decision to award the Council its costs is one we cannot consider – nor can we consider any issues directly linked – such as how the costs were calculated. If Mrs X wanted to challenge the Council’s costs, then she should have done so in court.
- Mrs X is also unhappy with the way individual staff have behaved. But their actions are intrinsically linked to the Council’s prosecution for non-attendance. They cannot be separated from the matters we will not investigate. Consideration by the Ombudsman is not therefore appropriate.
Final decision
- The Ombudsman will not investigate Mrs X’s complaint. This is because if Mrs X wanted to challenge the Council’s decision to prosecute and its claim for costs then she should have done so in court.
Investigator's decision on behalf of the Ombudsman