Summary: The Ombudsman cannot investigate this complaint about the actions of the Council in relation to the application by the complainant’s ex-partner to change their child’s school. This is because the matter was considered by a court and is out of our jurisdiction.

The complaint

1. The complainant, who I refer to here as Mr K, says that the Council did not consult the complainant, consider his wishes, or ensure compliance with a court directive when his ex-partner tried to move their daughter to a new school.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 ‘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. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered the information provided by Mr K. I have also sent Mr K a draft decision for his comments.

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What I found

6. Mr K has a daughter, D, who lives with her mother, his ex-partner. D’s mother applied to change D’s school and the application was agreed by the Council.
7. However, when Mr D became aware of the application, he complained to the Council about its decision. He said that as he has parental responsibility (PR) he should have been consulted before the application was agreed. He further said he had an initial court order restraining D’s mother from changing her school, with a final hearing to be held shortly thereafter. He therefore asked the Council to uphold the initial court order and refuse the transfer.
8. The Council’s response said that its policy only required one parent with PR to request a change of school, and that consent from the other parent was not necessary.
9. It also said it had taken legal advice and felt that without a final hearing, the order had no force. It dismissed his complaint and said that the school transfer would go ahead.
10. Mr K took court proceedings to prohibit his ex-partner from going through with the change of school. The judge ruled that the Council’s legal advice was wrong, and the initial order should have been sufficient to prevent the move.
11. Mr K has now complained to the Ombudsman about the Council’s actions, as he wants costs for his legal action, but we cannot investigate the substantive matter. This is because the court hearing considered whether Mr K’s ex-partner had the right to change the child’s school despite the initial court order. The court ruled that she did not. The question of whether the Council was right to continue to support the move after Mr K raised his objections and brought his PR status and court directive to the Council’s attention is therefore determined by the court’s decision and thus is out of our jurisdiction. It is also for the court to award costs if it feels it is appropriate.
12. In addition we will not investigate the complaint about the Council’s policy in respect of requesting a school transfer. This is because the Council is entitled to make provision for requiring only that a parent with PR makes the application, rather than requiring consent from both parents. Although Mr K feels that the policy shows gender bias, I do not accept his argument as the policy applies equally when a father makes the application. The fact that some other Councils have a different policy does not invalidate this one.
13. The council’s initial action was within its policy and there is no fault in the original decision to allow the transfer request on the information that it had at the time.

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Final decision

14. Subject to any comments Mr K might make, my view is that the Ombudsman cannot investigate this complaint. This is because the substantive matter is out of jurisdiction, and we are unlikely to find fault in the council’s original decision.

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Investigator's decision on behalf of the Ombudsman