Summary: The Ombudsman cannot investigate Mr B’s complaint about the actions of the Council between 2016 and 2018. This is because the matters complained about are related to matters considered by a court. The Ombudsman will not investigate Mr B’s complaint about information he wants but says the Council has not provided, because the Information Commissioner’s Office (ICO) is better placed to consider the matter.

The complaint

1. Mr B’s representatives complain that they have not had full responses to their complaints about care and payment for care for Mr B’s brothers dating back to 2016. Mr B’s representatives want:

• an explanation of why there was a delay in providing information about the amount and scope of direct payments for the persons affected, Mr B’s brothers, despite it being requested in December 2016
• improvements in Direct Payments policies and procedures to comply with the statutory guidance and provide a detailed breakdown of what care and support is covered in the Direct Payments
• compensation to Mr B for the detriment suffered by having to cover for nighttime care from December 2016.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. We also expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered the information and documentation Mr B’s representatives provided. I sent Mr B’s representatives a copy of my draft decision for comment.

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What I found

6. Mr B’s representatives asked the court to consider matters relating to Mr B’s brothers’ care needs and direct payments for their care between 21 December 2016 up to18 September 2018 when they issued Judicial Review proceedings.
7. The Ombudsman cannot investigate matters relating to the delay in providing information about the direct payments in 2016 or whether Mr B should receive compensation for having provided night care for his brother’s in 2016. Mr B’s representatives have taken court action about Mr B’s brother’s direct payments and care needs between 2016 and 2018 and the Ombudsman has no jurisdiction to investigate.
8. Mr B’s representatives say they have not received the information they requested in 2016 relating to the breakdown of what the direct payments cover.
9. Mr B’s representatives can ask the ICO to consider whether they should have access to the information they have asked the Council for but have not received, and it would be reasonable for them to do so.
10. Mr B’s representatives want the Ombudsman to recommend the Council improve its policies and procedures in line with guidance. The Ombudsman is not investigating this complaint because it relates to matters already considered in a court. The Ombudsman cannot seek to provide a remedy to matters he has not investigated.

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Final decision

11. The Ombudsman cannot investigate part of this complaint. This is because the substantive matters complained about are related inextricably to matters considered by a court. The Ombudsman does not have jurisdiction to consider these matters. It would be reasonable for Mr B’s representatives to ask the Information Commissioner’s Office (ICO) to consider the other part of the complaint about information it wants but says the Council has not provided.

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Investigator's decision on behalf of the Ombudsman