Summary: The Local Government and Social Care Ombudsman (LGSCO) will not investigate Mr X’s complaints about the actions of the Council, school and two NHS organisations. The Council has not yet had the opportunity to investigate and respond to most of the complaints about its actions. The Ombudsman cannot investigate the school complaints. Another Ombudsman is better placed to consider the complaints about the NHS organisations.

The complaint

1. The complainant, whom I shall call Mr X, complains about the actions of the Council and other organisations in relation to him and his child, C. In summary, he complains about the following issues.
1. Flawed service, communication, and input into the child protection process by a school nursing service.
2. An NHS organisation’s actions relating to mental health support and assessments for C.
3. The actions of another NHS organisation and a charity providing services on its behalf.
4. The actions of a school.
5. The Council Education, Inclusion and Partnership Team’s (EIPT’s) response to his concerns about the actions of a school.
6. That the Council failed to provide alternative education while C missed out on two years of school.
7. The actions of the Council’s children’s services relating to private family law proceedings, C as a ‘child in need’, child protection and public law proceedings.
8. Flawed complaint handling.
9. Discrimination and victimisation connected to the above.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out LGSCO’s powers but also imposes limits on what we can investigate.
3. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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)
7. LGSCO investigates complaints about councils and certain other bodies. LGSCO cannot investigate the actions of bodies such as NHS organisations. (Local Government Act 1974, sections 25 and 34A, as amended)
8. Where an individual, organisation or private company is providing services on behalf of a council, that council remains responsible for those services and for the actions of the organisation providing them. (Local Government Act 1974, section 25(7), as amended)
9. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different result, or
• there is another body better placed to consider this complaint, or
• it would be reasonable to wait until the end of related complaint processes.

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

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How I considered this complaint

10. I considered information provided by the complainant, the Council and the NHS.
11. I considered the LGSCO’s Assessment Code.
12. The complainant has had an opportunity to comment on a draft version of this decision. I considered his comments before making a final decision.

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My assessment

A – school nursing service

13. School nursing is part of the Council’s public health duties. While an NHS organisation provided the school nursing, the Council remains responsible for it.
14. The NHS organisation has already responded to Mr X’s complaints about the school nursing service. Where a service provider has done this, we would not always require a complainant to go through a council’s complaints process as well. However, in this case, the Council is yet to consider related parts of the complaint and it would make sense for them to be considered together as much as possible. I therefore consider it reasonable to:
• give the Council an opportunity to review this part of the complaint and provide its response to Mr X if it wishes to do so; and
• stop LGSCO’s consideration of this part of the complaint until the Council has responded to all outstanding parts of Mr X’s complaints.

B and C – actions of NHS organisations and a charity

15. LGSCO cannot investigate the actions of these organisations.
16. In some cases, LGSCO can work with the Parliamentary and Health Service Ombudsman (PHSO) to consider complaints about health and social care. However, we would not usually do so unless the health and social care issues are so entwined that we cannot separate the two. In this case, LGSCO can consider the Council’s actions separately from those of the other organisations. Mr X can ask PHSO to consider the actions of the NHS and charity further. This includes any concerns he has about the organisations’ complaint handling, as well as discrimination and victimisation relating to the organisations’ actions.

D and E – actions of school and Council’s response to Mr X’s concerns about this

17. The LGSCO cannot investigate the actions of C’s school.
18. The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
19. We could not achieve a meaningful outcome by investigating the way the Council handled Mr X’s complaints about school actions as we could not look at the key issue: what the school did. We will therefore not investigate the actions of the school, or the Council’s response to Mr X’s concerns about this.

F – alternative education

20. Mr X says that the Council has failed to ensure C received suitable alternative education despite being aware that C has been out of school for two years. The Council has not had an opportunity to put this complaint through its own complaints procedure. We will therefore not consider this matter further. Mr X can resubmit this complaint to LGSCO if he remains dissatisfied once the Council has responded to him through its own complaints procedure.
21. G - children’s services actions
22. We cannot investigate the Council’s actions relating to court proceedings.
23. Mr X also complains about the Council’s actions relating to:
• C as a ‘child in need’ as defined by the Children Act 1989; and
• child protection.
24. He says these may not have been part of the court proceedings, or closely related to what the courts considered.
25. The Council has not yet considered and responded to most of these issues through its complaints procedure. We will therefore not consider this matter further. Mr X can resubmit this complaint to LGSCO for further consideration if he remains dissatisfied once the Council has responded to him through its own complaints procedure.

H and I – complaint handling, discrimination and victimisation

26. Mr X considers the Council has acted unfairly by refusing to deal with some of his complaints while court proceedings were taking place.
27. The Council’s customer complaints policy is for complaints about most Council services. It says people cannot use this procedure to complain about matters the courts are considering.
28. The Council’s customer complaints policy does not apply to some complaints about children’s services, which are governed by regulations. (The Children Act 1989 Representations Procedure (England) Regulations 2006)
29. The government has also issued guidance on this statutory procedure. (Getting the Best from Complaints Social Care Complaints and Representations for Children, Young People and Others, issued by the (then) Department for Education and Skills in 2006)
30. The guidance says councils have discretion not to consider complaints where responding would prejudice concurrent court proceedings. The complainant can resubmit their complaint within 12 months of the conclusion of the court proceedings. (Getting the best from complaints, paragraph 2.5.2)
31. The regulations are more specific. They say councils shall not consider complaints about any matter in relation to which the complainant has stated in writing that he is taking, or intends to take, proceedings in any court. The complainant may resubmit the complaint within 12 months of the conclusion of the court proceedings. (The Children Act 1989 Representations Procedure (England) Regulations 2006), Regulation 8(1) and 8(4))
32. The Council decided not to consider Mr X’s complaints about most of the issues relating to children’s services while the courts were considering matters related to C’s care. The Council took the proceedings, not Mr X. The situation does not exactly reflect the regulations. However, it is in line with the guidance, which refers to “concurrent court proceedings”.
33. The Council has told Mr X that it would consider some of his complaints under the statutory children’s services complaints procedure if he resubmitted them after the final court hearing. The final court hearing happened recently. I consider the most sensible way forward would be for Mr X to now resubmit his complaints to the Council so it can start its consideration. This includes any concerns he has about the Council’s complaint handling, as well as discrimination and victimisation relating to the Council’s actions.
34. If Mr X remains dissatisfied once the Council has completed all three stages of the statutory children’s complaints procedure, he can complain to LGSCO again.

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Final decision

35. LGSCO will not investigate this complaint. This is because the Council has not yet investigated and responded to most of the complaints about its actions. If Mr X remains dissatisfied after the Council has done so, he can complain to us again. We cannot investigate complaints about schools, the Council’s actions connected to most school matters, or about the Council’s actions relating to court proceedings. Another Ombudsman is better placed to consider the complaints about the NHS organisations.

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Investigator's decision on behalf of the Ombudsman