Summary: We will not investigate this complaint about the possible reasons underlying the Council’s decision not to accept a fostering application from Mr X. We could not make a finding of hidden disability discrimination, which would be better sought from a court. Additionally, the reasons given by the Council for its decision include ones it was entitled to consider in reaching its decision.

The complaint

1. Mr X said the Council at first refused his application to foster due to incorrect claims made by another council that he then disproved by reference to a decision by us dating from 2019.
2. He said the Council then sought other reasons relating to his mental health that amounted to hearsay and fabrications.
3. He said his complaint was not about the decision, but about the real reasons behind it, which were hidden disability discrimination.

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The Ombudsman’s role and powers

4. 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 do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

6. 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

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. While it is correct that another council apologised to Mr X about certain matters that happened several years ago, evidence cited by the Council relating to the other council is not relevant to my decision.
10. This is because the Council gave two reasons concerning its own work with Mr X that would be sufficient themselves for it to decide not to progress a fostering application. Both involved the non-disclosure of matters that were relevant to the application.
11. One of the two concerned Mr X’s mental health. We cannot make any finding of disability discrimination. That would be a matter for a court to decide. The most we could do by investigating would be to consider if the Council had met its duty to consider the equality impact of its actions.
12. However, the Council’s first duty in deciding whether a person should foster children is child protection. That is particularly so for children whose lives have already been disrupted and who require foster placements. The Council could decide that the mental health issue was sufficiently serious that it might create a risk to a potential placement. It could also consider not fully disclosing it an additional matter of concern. Even if we were to find the Council failed to consider its duties under the Equality Act 2010, we could not then say the decision would have been likely to be different and thus to have caused Mr X injustice.

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Final decision

13. We will not investigate Mr X’s complaint because:

• A court would be better placed than us to make a finding of disability discrimination, as we cannot do this, so it would be reasonable for Mr X to go to court; and
• Any investigation by us would not lead to a finding of fault causing injustice in the substantive matter of the decision the Council took.

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Investigator's decision on behalf of the Ombudsman