Summary: The Ombudsman will not investigate Mr X’s complaint that the Council prosecuted him for taking his child out of school and that an enforcement agent is demanding he pays £610. The Council was entitled to prosecute Mr X and has not caused him an injustice. The court’s decision and actions of its enforcement agent are outside the Ombudsman’s jurisdiction.

The complaint

1. Mr X complains the Council prosecuted him for not paying a fixed penalty notice it had issued because his child was out of school on holiday in June 2018. Mr X says he paid the fine the day before court and that the Council prosecuted him without telling the court the correct position. Mr X says the Council led him to believe that it could or would take the case off the court list. Mr X says he only learnt of his conviction when the court’s enforcement agent visited and demanded £610 pounds. Mr X says the Council has caused him stress and anxiety and he cannot afford to pay. He says the Council should overturn the conviction and pay compensation.

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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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. 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)
4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as an enforcement agent acting on behalf of a court. (Local Government Act 1974, sections 25 and 34A, as amended)

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How I considered this complaint

5. I have considered Mr X’s information and comments and discussed the complaint with him by telephone. Mr X has not replied to the draft decision statement sent to him on 16 March. I have considered the Council’s reply to my enquiry. The information includes the electronic receipts of Mr X’s payment to the Council, the email he sent to the Council the day before court and his email to his MP about the matter.

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What I found

6. On 3 August and 7 September 2018, the Council says it sent Mr X fixed penalty notices because his child failed to attend school for 8 days in June. Mr X says he received a notice and forgot to pay the fine. The Education Act 1996, section 444, says where payment of a fixed penalty notice is made in accordance with the notice then a person can avoid being prosecuted for the offence. A penalty must be paid within 28 days (the reduced amount of £60 is payable within 21 days and then rises to £120).
7. On 4 December 2018 the Council’s attendance officer wrote to Mr X and told him he would be prosecuted at the Magistrates Court, in March 2019 at 9:30. The letter includes an email address for the attendance section. The letter says a summons will follow.
8. The Council has provided a ‘certificate of service’, dated 31 January 2019, showing it sent Mr X a summons and other documents on that date. The summons says Mr X is being prosecuted under section 444(1) of the Education Act 1996. This is the lesser of two non-attendance offences and allows the Council discretion not to prosecute. The summons confirms the time of court is 9:30. Mr X says he received the summons but due to a family crisis did not deal with it.
9. In March 2019, the day before court, Mr X contacted the Council. He paid by card the original fine of £60 (Mr X says he was not aware that the fine had risen to £120). At 16:51 the same day Mr X sent the following message to the Council’s ‘bacsremittances’ email address: ‘Hi, I have been advised to send my reference to you guys so you can confirm payment and remove me from being in court tomorrow. The reference is…’
10. Mr X’s complaint to the Ombudsman says he: ‘emailed proof of payment to the attendance office directly using the email the person I had spoken to 20 minutes prior had given me’. The email: ‘contained my request that the case be pulled from the upcoming court hearing as the fine had been paid’. When I spoke to Mr X he told me that he had spoken to a lady, he does not remember whom. She advised that his case “could” be removed from the court list if paid by 5pm that day. The officer said his email would go to her and she gave him the email to use.
11. I provided to the Council the email Mr X sent it on the day before court and asked it to check any other contact the day before, the day of payment, and on the court day. The Council tells me it has no record of any conversation or communication. It says its attendance team are clear they would not have advised Mr X in the terms suggested.

Analysis

12. I will not investigate this complaint for the following reasons:
13. There is no evidence of fault in the Council issuing the fixed penalty notice and summons. Mr X confirms he received them. Where a fine is not paid according to the notice, including the required time, a council is entitled to prosecute.
14. Investigation is not likely to establish who Mr X spoke to the day before court or what was said. Mr X did not email the education attendance section, although its December communication with him provided contact details (see paragraph 7 above). There is no conclusive evidence that Mr X contacted the attendance team that was dealing with his case. He did not do so following its communications with him. He did not provide a reason or evidence that might have led the Council to exercise its discretion not to prosecute.
15. The Council has not caused Mr X an injustice by what was said or not said the day before court or by any inaction. There was little, if any time, between his payment and email to the Council and the time given for the court case (9:30 the next morning). Given the seriousness of his position, Mr X should have obtained from the Council written confirmation that the prosecution had been withdrawn or he should have contacted the Court, or attended, to check the situation. Mr X has caused his problem throughout by not taking timely action. His first contact with the Council was more than 7 months after the fixed penalty charge was issued.
16. The Ombudsman does not have jurisdiction to investigate what happened in a court (paragraph 3). This includes the Council’s evidence and statements.
17. The Ombudsman does not have jurisdiction to investigate the enforcement action and the related costs (paragraph 4). The enforcement agent in pursing payment of the fine is acting on behalf of the court not the Council.
18. The Ombudsman cannot achieve the outcome Mr X wants. Mr X tells me he has another appointment at court which is to consider a statutory declaration he has submitted. It is for the court to consider whether he has good cause for not paying the fine and costs.

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Final decision

19. The Ombudsman will not investigate Mr X’s complaint that the Council prosecuted him for taking his child out of school and that an enforcement agent is demanding he pays £610. The Council was entitled to prosecute Mr X and has not caused him an injustice. The court’s decision and actions of its enforcement agent are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman