Summary: We cannot investigate this complaint about the Council’s decision making on Mr Y’s care and support. This is because the matter is the subject of court action.

The complaint

1. Mr X complains about the Council’s decision to change his son Mr Y’s care and support plan, including a lack of reasons and failure to take account of family views.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. 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))
5. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. When someone complains on behalf of a person who lacks mental capacity, we may decide not to investigate because the events happened too long ago, meaning we are unlikely to be able to reach reliable conclusions and/or unlikely to achieve meaningful outcomes. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

7. I considered information provided by Mr X.
8. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

9. Mr X says he does not want the Ombudsman to investigate the merits of the Council’s decision on Mr Y’s care and support as the Court of Protection will consider this. However, he wants the Ombudsman to investigate the Council’s procedural handling of the matter including a failure to engage with the family and a lack of reasons to support its decision making.
10. The Ombudsman cannot consider whether there was fault in how the Council reached its decision as this directly overlaps with the court’s consideration of the Council’s decision. The matters are not separable. And even if they could be separated, the injustice stems from the decision outcome which is being considered by the court. There is no separable significant injustice to warrant an investigation of the Council’s process only.
11. The Council issued a care and support plan, (subject of this dispute), in early 2025 and confirmed it would make a new application for a Deprivation of Liberty Safeguards (“DOLS”) authorisation. Mr X complains the Council did not issue a care plan or ensure it had DOLS authorisation prior to January 2025. However given the time passed since these complaints arose and the actions taken since, I consider investigation would be unlikely to achieve a meaningful outcome.
12. Mr X is also unhappy with the Council’s handling of his complaints. However, it is not a proportionate use of our resources to investigate the Council’s complaint handling when we are not investigating the substantive issues.

Back to top

Final decision

13. We cannot investigate Mr X’s complaint because it is the subject of court action.

Back to top

Investigator's decision on behalf of the Ombudsman