Summary: We will not investigate this complaint about the Council’s handling of arrangements for Ms V’s care and support because: the Court of Protection either supervises or should consider the arrangements; the Council has offered a suitable remedy for some shortfall in service and explained its decision on charges for Ms V's care and support; and we will not investigate the handling of correspondence for its own sake. The matter does not therefore warrant us investigating.

The complaint

1. Mr S and his advocate, Ms T, say the Council has failed to:
1. review the placement and support for Ms V, Mr S’s adult child whose living arrangements the Court of Protection supervises under an order made in 2021;
2. consider less restrictive arrangements, find a suitable alternative placement in line with a decision it made in November 2022, or to apply to the Court for a review in line with the 2021 Order;
3. explain why it began to charge Ms V a contribution towards the cost of her care and support from August 2023; and
4. provide information and answers to their questions on these points.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes limits 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, paragraph 1, 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 has done. (Local Government Act 1974, section 26B, as amended)
6. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
7. We do not normally investigate separately the way a council handles complaints or correspondence about a matter we are not investigating because it is not a good use of public money. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

8. I considered information provided by the complainants, which included the Council’s response to their complaint.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. The terms of the Court of Protection Order in 2021 included provision for:
• Mr S to represent Ms V in the Court’s proceedings then and later;
• the Council to apply for a review of the order in twelve months;
• Mr S to make earlier application for review if he considered the care plan no longer served Ms V’s best interests; and
• any other party to the action, affected by the order, or interested in Ms V’s welfare to apply to the Court at any time for reconsideration, variation or discharge of the Order.
11. We cannot investigate any action or omission of the Council under or in breach of the Order because it is in connection with the court proceedings.
12. After Mr S and the Council agreed in November 2022 Ms V needed different living arrangements, it would have been and would still be reasonable for Mr S to apply to the Court of Protection himself. So we will not investigate parts a) and b) of the complaint as they relate to matters under the supervision of the Court and subject to its decisions.
13. The Council accepted in December 2023 the arrangements it had made were not fully satisfactory and there was delay in arranging daytime activities until a suitable alternative placement became available. It offered Ms V a payment for the effect of this on her and one for Mr S to recognise his time and trouble in complaining. As the Council consulted the Ombudsman’s guidance on remedies for complaints it is unlikely we would seek or achieve a different result if we investigated.
14. The Council has explained it became aware in August 2023 of increases to
    Ms V’s benefits which Mr S had not told it about. It reassessed Ms V’s finances and began to charge a contribution to the cost of her care and support, but did not backdate the charge in line with benefit increases which led to it. The Council also says it writes to clients every year when benefit rates increase to tell them the new contribution and how it calculates them. Without evidence to suggest the Council did not write to Mr S about Ms V’s finances from 2019 to 2023 we have no reason to investigate the point.
15. Councils generally also ask service users to tell them if the facts used in financial assessments are correct and remind them they must tell the Council of any changes, including increases to income the Council may not have taken into account. This Council says it does this and we have no evidence to the contrary. But if Mr S did not respond or correct any information the Council had got wrong, we could not hold the Council responsible. It is also the case, however, if the Council had known correctly about Ms V’s benefits, it is likely it would have started charging her a higher contribution sooner. It has not backdated the higher contribution so it has not caused Ms V a significant enough injustice to justify us investigating.
16. On the balance of probability the Council has provided information about how it assessed Ms V’s finances in calculating her contribution towards the cost of her care, even if it has not later replied to Mr S’s or Ms T’s questions. If they believe the charge is incorrect based on the information the Council would likely have sent originally it is open to them to say what the Council should change and why. There is not enough evidence of Council fault to warrant us investigating, however.
17. As we are not investigating the matters in the complaint, we will not separately investigate the way the Council may have responded to contact, correspondence or complaints about them because any injustice Mr S might claim for himself or Ms V relates to the underlying events, not the later correspondence.
18. Mr S and Ms T say they are seeking compensation for Ms V, based on claims for unlawful detention and a breach of her Human Rights. The Ombudsman cannot decide whether the Council has detailed Ms V unlawfully, breached her Human Rights, or award compensation; those are all matters for a court of law so we will not investigate them.

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Final decision

19. We will not investigate Mr S’s and Ms T’s complaints because:
1. the key matters are either subject to supervision by the Court of Protection or ones it would be reasonable for Mr S to apply to the Court to consider;
2. we could not achieve more than the Council has already offered to remedy a shortfall in service provision;
3. there is not enough evidence of fault in the Council’s calculation of care and support charges, nor of injustice to Ms V from it not backdating them; and
4. investigating complaints and correspondence handling separately would not be a good use of public money.

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Investigator's decision on behalf of the Ombudsman