Birmingham City Council (21 009 103)

Category : Children's care services > Looked after children

Decision : Closed after initial enquiries

Decision date : 21 Apr 2022

The Ombudsman's final decision:

Summary: We cannot investigate this complaint about the Council withholding letter contact between Miss X and a grandchild. The matter complained of is not separable from matters included in court action.

The complaint

  1. Miss X said the Council withheld correspondence from her grandchild. She also said it did not give her compensation it agreed to.

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The Ombudsman’s role and powers

  1. 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)
  2. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to 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)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended
  4. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I considered information provided by the complainant and the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. The evidence provided by both parties shows there has been recent court action concerning contact with her grandchild. Miss X says the court declined to consider the matters she complains of. Court action is wider than simply the matters the court chose to consider. It also includes everything submitted to the court from the point of first contact. Regardless of the outcome of court action, or whether a court hearing declines to consider a matter, we have no authority to consider matters that are not separable from the court action.
  2. The payment was due from the Council after an earlier investigation by us. Miss X approached us about this matter more than 18 months after the payment was due. She could have approached us sooner. The Council told us it had made the payment and provided a copy of an email to Miss X confirming this. We also confirmed on the record of the earlier investigation that we were satisfied the remedy we had asked for, which included the payment, was complete.

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Final decision

  1. We cannot investigate Miss X’s complaint about letter contact because this matter is not separable from court action about contact
  2. We will not investigate Miss X’s complaint about the payment because she could have approached us sooner and there is no good reason to exercise discretion to investigate now. Even if that were not so, there would not be enough evidence of fault to justify investigation.

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Investigator's decision on behalf of the Ombudsman

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