Summary: We will not investigate this complaint about the alleged neglect of Mrs X’s child in foster care. The matters complained of are not separable from matters that have been subject to court action by Mrs X since the child was first taken into Council care several years ago. As the child is now approaching adulthood and the current court order will soon lapse, only a court could resolve any dispute about their care.

The complaint

1. Mrs X said the Council has neglected her child in foster care. She also complained the Council excluded her, failed to work with the family, and misrepresented matters in court.

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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 have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
4. 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)
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. 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. The documents provided by Mrs X show she has consistently opposed a decision several years ago by the Council that her disabled child should not continue to live with her. In a complaint to us in 2020 (19 012 470), she complained her child was being neglected in Council care. This new complaint is consistent with that.
10. Following the original court order, the documents state that Mrs X made more than one unsuccessful application to the court to discharge the order. They also state the court then granted a further order requiring its supervision of any further application by Mrs X to discharge the original order. Taken together, these orders show the matter of who has been best placed to care for Mrs X’s child has been subject to court action. We cannot comment on what happened in court. And the court involvement removes our power to investigate closely related matters. I am satisfied that the recent allegations of neglect, which the Council responded to in detail, are not substantively different from Mrs X’s previous concerns, and directly relate to the question of who is best placed to care properly for the child.
11. Moreover, the child is due shortly to reach adulthood and will in any case leave the care of the foster carers. A new decision is likely to have to be reached about the young adult’s care. Any investigation by us could not supplant the potential role of a court in the event there is no agreement between Mrs X and the Council about the way ahead.

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Final decision

12. We will not investigate Mrs X’s complaint because:

• We cannot investigate matters that are closely connected to matters that have been decided by a court;
• Mrs X has previously exercised her right to go to court, and the right to go to court that it would be reasonable to use has remained open to her, albeit limited by a further court decision. It will do so until her child’s 18th birthday; and
• In the event there is no agreement about the child’s care at age 18, only a court could resolve any continuing dispute.

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Investigator's decision on behalf of the Ombudsman