Summary: We will not investigate this complaint about the Council not seeking Mr X’s permission to process an application for his child to change school. Only a court could decide if changing a child’s school is a major decision that requires the consent of both parents with parental responsibility, or award significant compensation.

The complaint

1. Mr X said the Council breached his human rights by failing to seek his consent for his child to move schools. He wanted the Council to pay a significant sum of compensation.

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The Ombudsman’s role and powers

2. 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 we cannot achieve the outcome someone wants.(Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. In responding to Mr X’s complaint, the Council referred to guidance from the Department for Education (DfE) about parental responsibility (PR). This guidance states that the consent of all parties with PR is only required in major decisions affecting a child, such as moving overseas. It states that consent is not required in matters that are not major decisions. The Council took the view that changing a child’s school after a change of address is not major matter. But the guidance does not specifically refer to changes of school. We can only reach a view about whether the Council considered its potential human rights duties. In responding to Mr X’s complaint, the Council showed it had considered the implications in terms of parental and thus human rights. So, there is no evidence that Council failed to consider its potential duty, because it acted based on its interpretation of DfE guidance.
7. However, we cannot say if the Council made the right decision about whether a change of school is a major decision in terms of DfE guidance. Only the DfE or a court could clarify or decide that. And only a court could decide if the Council breached Mr X’s human rights. Finally, large sums of compensation are also something that only a court can order. For these reasons, it would be reasonable for Mr X to use his right to go to court to challenge the Council’s decision that it did not have to seek his permission and to pursue a compensation claim.

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Final decision

8. We will not investigate Mr X’s complaint because it would be reasonable for Mr X to use his right to go to court to challenge the Council’s definition of government guidance, to establish if there was a breach of his human rights, and to seek compensation.

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Investigator's decision on behalf of the Ombudsman