Summary: We will not investigate this complaint about a care assessment because the issues raised could reasonably have been, could be or were raised as part of legal proceedings and the court is better placed to consider the complaint.

The complaint

1. Mr Y complained the Council incorrectly refused care for his adult child and failed to properly respond to their subsequent complaint. This led to a delay in care being put in place, poor communication and significant frustration and worry. It also led to Mr Y seeking legal advice and assistance, at a significant cost which he is now seeking to recover from the Council, as well as other costs.

Back to top

The Ombudsman’s role and powers

2. 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))
3. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

4. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Mr Y is seeking to recover the costs of the legal assistance he has received as well as a reimbursement of costs for backdated care. The recovery of such costs are matters it is better for the courts to consider. This is because we cannot decide liability or award damages, such as the costs of legal advice.
6. Consequently, any claim for costs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts.
7. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter if necessary.
8. Where Mr Y may have already approached the courts in this matter, it is reasonable for him to have made a claim for costs during those proceedings. Consequently, we will not investigate this complaint.

Back to top

Final decision

9. We will not investigate Mr Y’s complaint because the issues raised could reasonably have been, could be or were raised as part of legal proceedings and the court is better placed to consider the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman