Summary: We will not investigate this complaint about the Council’s decision not to disregard Mrs Y’s property when it assessed her finances and its refusal to offer her a Deferred Payment Agreement. The dispute at the centre of the complaint relies on interpretation of the law. The courts are therefore best placed to consider the matter.

The complaint

1. Ms X, via her solicitor, complained the Council refused a Deferred Payment Agreement (DPA) for her mother, Mrs Y. She complained the Council also delayed dealing with their complaint.
2. Ms X said the matter has left her uncertain about Mrs Y’s ability to pay for her care in a care home. She said this has caused her distress and meant she had to hire legal representation. Ms X wanted the Council to respond to the complaint with explanations, apologise and make service improvements. She also wanted the Council to contribute to her legal costs.

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The Ombudsman’s role and powers

3. 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

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. A property Mrs Y partly owns was let out to tenants after she moved into supported living accommodation. She subsequently moved into a care home.
7. Ms X asked the Council to agree to a DPA, meaning the family would not be required to sell Mrs Y’s property to pay for her care until a later date. The Council refused this request. Ms X sought legal advice, and her solicitor contacted the Council. They then complained to us.
8. The fundamental point of contention between the Council and Ms X’s solicitor is the meaning of ‘main or only home’. This is relevant to the Council’s decisions about whether to disregard the property in question, and whether it is required in law to offer Mrs Y a DPA. Their correspondence makes clear they dispute the interpretation of what the law and guidance say.
9. The courts are best placed to consider this matter for several reasons:
• The complaint turns on a point of law which is unclear, or disputed statutory interpretation. The Ombudsman cannot decide whose interpretation of the law is correct and in the spirit of the guidance. This is a decision only the courts can make.
• We would be unlikely to recommend the Council pay Ms X’s legal costs, as it is generally not necessary to hire legal representation to complain to the Ombudsman.
• Given the significant financial interest, the cost to benefit ratio of pursuing legal action does not make court action disproportionate. Ms X can also ask the courts to make a costs order, requiring the Council to pay Mrs Y’s legal fees, if the case is decided in her favour.
• Ms X has already instructed a solicitor in relation to the matter.
10. In this case, it is reasonable for Ms X to refer the matter to the courts, and we will therefore not investigate her complaint.
11. It is not a good use of public resources for us to investigate complaints about complaint procedures when we are not investigating the substantive matter. We will therefore not investigate the complaint the Council delayed responding when the solicitor wrote to it.

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Final decision

12. We will not investigate Ms X’s complaint because the central issue relies on interpretation of the law. The courts are best placed to consider the matter.

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Investigator's decision on behalf of the Ombudsman