Medway Council (25 013 566)
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the Council’s decision to issue a fixed penalty notice for unauthorised absence from a school. This is because it concerns a matter which could reasonably have been considered in court.
The complaint
- The complainant, Mr X, complains that the Council was at fault in issuing him with a fixed penalty notice for his son’s term-time absence from school.
The Ombudsman’s role and powers
- We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
How I considered this complaint
- I considered information provided by the complainant.
- I considered the Ombudsman’s Assessment Code.
My assessment
- Mr X complains that the Council was at fault in issuing him with a fixed penalty notice when he took his son out of school during term time. He says the Council failed to take account of its duties under the relevant legislation and its own procedures. Specifically, he complains that it failed to take account of his son’s special educational needs and the provisions of the Equality Act 2010. The Council denies that it was at fault.
- The Ombudsman will not investigate Mr X’s complaint. There is no dispute that the term-time absence was unauthorised. The question is whether the decision to issue the fixed penalty notice was flawed. That is not something on which the Ombudsman will take a view. This is because the substantive matter could reasonably have been determined in court.
- If Mr X did not accept that the notice was appropriate, it was for him to decide whether to pay the penalty. It would then have been for the Council to decide whether to prosecute and, if so, it would have been open to Mr X to mount a defence. In the circumstances, it is not for the Ombudsman to intervene.
Final decision
- We will not investigate Mr X’s complaint because it concerns a matter which could reasonably have been considered in court.
Investigator's decision on behalf of the Ombudsman