Summary: We will not investigate Mr X’s complaint about a penalty notice and the Council’s application of the relevant law and guidance. This is because Mr X had a court remedy available and it is reasonable to expect him to have used it.

The complaint

1. Mr X complained the Council wrongly applied sections 7 and 444 of the Education Act 1996 and issued a penalty notice for his child’s absence from school.
2. He said the Council ignored Code T of the national guidance on Traveller children school absences and ignored his family’s Traveller status.
3. Mr X complained the Council wrongly applied the Supreme Court’s ruling in Platt v Wight. He said the Council failed to consider the legal points he raised.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered information provided by Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. When a Council issues a penalty notice for school absence, it must decide whether to prosecute for the original offence or withdraw the notice after 28 days if the parent does not pay in full.
9. Mr X disputes the legal basis of the penalty notice. However, he had the option to not pay the penalty notice and wait 28 days for the Council to either prosecute him or withdraw the penalty notice.
10. We note Mr X paid the penalty before the Council had made a decision.
11. If the Council had decided to prosecute him, Mr X would have been summoned to court, and he could have raised his legal points in court.
12. We will therefore not investigate his complaint because it is reasonable to expect Mr X to have used the court remedy. We are not an appeal body, and a court could have decided whether the Council correctly applied the relevant case law and legislation to his case.
13. A court could also have decided whether the Council considered his child’s Traveller status and took Code T of the national guidance on Traveller children’s absences into account.

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Final decision

14. We will not investigate Mr X’s complaint because he had a court remedy available and it is reasonable to expect him to have used it.

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Investigator's decision on behalf of the Ombudsman