Summary: We have discontinued the investigation into Mrs X’s complaint about the placement of her son C. This is because the matters Mrs X raises are the same as the grounds she put forward to the courts when applying to judicially review the Council. We have no jurisdiction to investigate a complaint after proceedings about the same matter have commenced.

The complaint

1. Complaint one) Mrs X complains that she was told her preferred placement for C was being considered at a time when it was not. She complains the Council was not clear about the status of two decisions it made and raises concerns about Council processes which came to light during Stages 2 and 3 of the complaint process.
2. Complaint two) Mrs X complains the Council did not inform her that C would not have a suitable school place when he moved to the Council’s chosen care placement. She complains that her complaints relating to education planning were wrongly not investigated at a local level. She is concerned that the Council is not properly meeting its duty in relation to education care planning for looked after children.
3. Complaint three) Mrs X complains the move to the Council’s chosen care placement was decided very quickly, and an overnight visit arranged without proper planning. She complains that during the complaint process she was told to do a Subject Access Request to receive documents she believes she should have received during the course of the complaint process.
4. Complaint four) Mrs X complains that she was not given any information as to how the Council reached a decision about its chosen care provider. She complains that she did not receive a response to her views prior to the Council making its decision. She also complains that the Council would not share information about its concerns around her preferred provider.
5. Complaint five) Mrs X complains the social worker in charge of the case did not contact C’s medical professionals for advice about his needs, and as a result, there were not appropriate toileting arrangements made. She also complains that the Council was aware that its chosen placement was similar to placements that had failed previously, but it still placed C there.

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The Ombudsman’s role and powers

6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
7. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. During my investigation I considered the information provided by Mrs X and discussed the complaint with her by telephone.
11. I made enquiries of the Council and considered its response alongside the responses to the statutory complaint investigation. I also consulted the relevant law and guidance.
12. I issued a draft decision and considered any comments made by Mrs X and the Council. I considered any comments received before making a final decision.

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What I found

13. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot investigate when someone has commenced court proceedings about the same matters which they complain to the Ombudsman about.
14. The Ombudsman’s Guidance on Jurisdiction says that, if a complainant has made an application to the Court for permission to take judicial review proceedings this is “resorting to the remedy” even if the application is rejected or withdrawn before the hearing. In judicial review the right is exercised when the complainant makes their application to the court. In such cases the Ombudsman cannot exercise discretion to investigate.
15. After we issued the first draft decision on Mrs X’s complaint, which proposed a finding of fault causing injustice, we received information about an application Mrs X made to judicially review the Council in September 2021. The remedy sought by Mrs X was for C’s placement to be revisited.
16. The court’s decision order from February 2022 said permission to apply for judicial review was refused due to the Council agreeing to move C from the placement. The court therefore decided Mrs X’s claim was “academic”.
17. We asked Mrs X to provide a copy of her application to the courts so that we could see whether her complaint to us covers the same issues. Having considered the grounds and facts of Mrs X’s judicial review claim, it is my view that the complaint summarised in paragraphs one to five contain no separable issues that we could investigate.
18. As explained above, there are restrictions on the matters the Ombudsman can consider. Once a person has taken court action, using their right to seek an alternative remedy, the law prevents the Ombudsman from considering those matters. Our jurisdiction therefore ended when Mrs X submitted her judicial review application.
19. Mrs X has told us that she remains concerned about some of the Council’s actions following her judicial review application. The Council agreed in December 2021 to move C from his allocated placement and Mrs X says he experienced injustice from remaining in the placement until June 2022. We have decided this would be a new complaint which is not covered by the summary listed in paragraphs one to five of this statement. The Council has not yet had the opportunity to consider any such complaint and so we have not investigated it as part of this case.

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Final decision

20. I have discontinued the investigation into Mrs X’s complaint because the complaint covers the same or related matters which Mrs X included in her application to judicially review the Council in September 2021. The Ombudsman has no jurisdiction to investigate the same matters.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman