Summary: We will not investigate this complaint about what happened when the Council referred a matter to the Court of Protection. This is because the matter has been considered in court and also because we cannot achieve the outcomes requested.

The complaint

1. Mr Y complains, on behalf of Mrs X, about having to pay legal fees for a solicitor to represent her during proceedings at the Court of Protection.
2. Mr Y would like the Council to pay Mrs X’s legal fees and also compensate them both for mental distress.

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The Ombudsman’s role and powers

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 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:

• we cannot achieve the outcome someone wants, or

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

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

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My assessment

7. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.

8. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection

• decides whether a person has capacity to make a particular decision for themselves
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
• appoints deputies to make decisions for people lacking capacity to make those decisions
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid, and
• removes deputies or attorneys who fail to carry out their duties.

9. Mrs X decided to contract legal services as the Council apparently wanted the Court of Protection to decide if she had mental capacity to appoint Mr Y as her attorney. Mrs X was found to have mental capacity to decide Mr Y should be her attorney.
10. The Ombudsman cannot investigate as the matter has been considered at court. Further there are no grounds for the Ombudsman to intervene with respect to Mrs X’s legal charges or any other compensation.

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Final decision

11. We will not investigate Mr Y’s complaint because the matter has been to court and the Ombudsman cannot achieve the outcomes requested.

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Investigator's decision on behalf of the Ombudsman