Summary: We will not investigate this complaint about adult social care, and the Council’s communication with the complainant. The main issues complained about have been known to the complainant for more than 12 months, have been heard at court, or the complainant could reasonably have taken to court. It is unlikely the Ombudsman would find the court action was misconceived, and it is not a good use of our resource to only look at complaint handling.

The complaint

1. Ms C says the Council failed to investigate her mother, Ms D’s true financial situation before applying to the Court of Protection. Ms C says the Council failed to investigate accusations of abuse made about Ms C. Ms C says the Council failed to thoroughly interrogate evidence she provided before responding to her complaint in July 2023, so its response is inaccurate. Ms C says she has suffered trauma over many years relating to the care and support of her mother (Ms D) and wants the Council to help put things right.

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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 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)
4. 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)
5. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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, 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))

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How I considered this complaint

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

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My assessment

9. Ms D lived in residential care arranged by the Council until she died in 2022. Ms C raised many concerns in Ms D’s lifetime about the care support.
10. Ms C’s most recent complaint to the Council, to which the Council responded in July 2023, covers three main points:
• The Court of Protection process and the court appointed deputy.
• The limited contact between Ms C and Ms D.
• Safeguarding processes.
11. The Care Provider who ran the care home where Ms D lived limited Ms C’s contact with Ms D. The Council took a case to the Court of Protection because Ms D’s contribution towards her care support was not being paid. The Court put a professional deputy in place to manage Ms D’s finances, and considered the issue of Ms C’s contact with Ms D.
12. As these issues have been heard by a court, the Ombudsman cannot consider them. The Ombudsman would not consider the court action was misconceived, given the court made a finding. If Ms C was unhappy with the arrangements for visiting Ms D, or the arrangements for Ms D’s care, Ms C could reasonably have returned the matter to court.
13. If Ms C was unhappy with the actions of the deputy, she could have raised concerns with the Office of the Public Guardian (OPG). The OPG can consider concerns about the misuse of money or decisions that are not in the best interests of the person the deputy is responsible for.
14. Ms C contacted the Council following Ms D’s death and has raised concerns about safeguarding Ms D, and the communication with Ms C. Safeguarding is protecting an adult’s rights to live in safety, free from abuse and neglect. The Local Authority where the person lives is responsible for safeguarding adults in its area. Ms D died in mid-2022 therefore any complaint about the Council’s actions, or inaction, to safeguard Ms D and communication with Ms C is a late complaint. I can see no reason Ms C could not have raised these concerns with the Ombudsman sooner. There would be no worthwhile outcome by investigating safeguarding now as there is no longer any risk to Ms D.
15. Ms C is also unhappy with the way the Council dealt with her complaint and says the Councils response is inaccurate. It is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issues complained about. We will not therefore investigate this issue separately. There is nothing worthwhile the Ombudsman could achieve by investigating. The main substance of the concerns happened over 12 months ago, and Ms C was aware of the concerns at the relevant time. There is no good reason the issues could not have been raised sooner, though we still could not look at anything that has been to court or could reasonably be returned to court.
16. Ms C is the executor of Ms D’s estate. If Ms C needs information to settle Ms D’s estate and the Care Provider, Council or deputy is not providing what she needs, Ms C can make a formal request for information. If the bodies fail to provide information, Ms C can challenge this with the Information Commissioner’s Office (ICO). The ICO upholds information rights. The management of Ms D’s estate is not a matter for the Ombudsman.

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Final decision

17. We will not investigate Ms C’s complaint because we have no power to consider issues that have been to court. Ms C has known of the substantive issues for more than 12 months, and there were alternative bodies such as the Court, the OPG and the ICO who could consider her concerns. The Ombudsman would not solely investigate the Council’s complaint handling. There is no worthwhile outcome the Ombudsman would now achieve by investigation.

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Investigator's decision on behalf of the Ombudsman