Summary: We will not investigate this complaint about the Council’s alleged failure to provide Mr Y’s care. We could not achieve a meaningful outcome given Mr Y’s family’s clearly stated intention to begin court proceedings about the matter. Any investigation by us would prejudice those proceedings.

The complaint

1. Ms X (Mr Y’s sister) complained about the Council’s alleged failure to meet Mr Y’s needs. She said the Council had only provided 18 hours’ care weekly of the 40 hours it assessed him as needing, since mid-2024.
2. Ms X said Mr Y had therefore been unable to access the community and meet outcomes related to this. She said their mother (Mrs Z) had been required to provide care for the remaining 22 hours weekly, against her will. Ms X said the Council’s actions breached Mrs Z’s human rights. Ms X wanted the Council to provide care urgently for the full 40 hours.

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The Ombudsman’s role and powers

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 we cannot achieve the outcome someone wants, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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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. Ms X’s complaint is about the Council’s alleged failure to provide the full 40 hours’ care weekly her brother, Mr Y, is assessed as needing in addition to paid care their mother, Mrs Z, provides via direct payments.
8. We cannot achieve a meaningful outcome in this case. This is because:
• Ms X and Mrs Z have clearly stated their intention to begin court proceedings in their communications with the Council. This relates to their claim the Council’s actions have breached Mrs Z’s article 8 right to a private and family life. In order to consider this claim, the courts would need to consider the Council’s actions so far towards sourcing care for Mr Y. Any investigation by us would encroach on the court’s remit and prejudice any such proceedings.
• The courts are best placed to consider the matter. While we could say whether the Council had ‘due regard’ to Mrs Z’s rights, we could not come to a finding about whether it had breached her human rights. It is also not the role of the Ombudsman to provide compensation for such a breach, and where this is a person’s primary aim we will signpost them to the courts. Ms X and Mrs Z have already begun discussing the matter with the Council’s legal team. The parties’ representations are legal matters for the courts, not the Ombudsman.
• Any recommendation we could make, relating to the Council providing care going forward, would rely on a finding of fault in its actions so far. Given this is within the remit of the court action Ms X and Mrs Z intend to take, we could not make any such recommendation.
9. For the above reasons, it is reasonable in this case for Ms X and Mrs Z to refer the matter to the courts instead of the Ombudsman. We cannot investigate the matter as well as the courts being asked to make findings.

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Final decision

10. We will not investigate Ms X’s complaint because we could not achieve the outcome she seeks given her intention to begin court proceedings about the matter.

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Investigator's decision on behalf of the Ombudsman