Summary: The Ombudsman cannot investigate this complaint about the effect of the Council’s decisions in 2017 on funding social care for Mrs B which it later changed. This is because Mrs B and Mr C have already begun court action about the same matter.

The complaint

1. Mrs B and her husband and main carer, Mr C, complain to us through their solicitor, Ms D, about the Council’s actions in 2017 and 2018 relating to Mrs B’s social care funding. They say the Council failed to follow correct procedures when it decided to reduce the funding it provides, and did not restore the position until January 2020. They seek a payment of £10,000 to remedy the effects on them of the reduced funding and £1800 to cover their legal costs.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. The courts have said that where someone has already started court action about the matter, the Ombudsman has no discretion to investigate. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

5. I considered what Ms D said for Mrs B and Mr C in the complaint and the documents they provided.

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What I found

6. Mrs B needs social care and support, some of which Mr C provides as her main carer. In 2017 the Council reduced the amount of direct payments it provided to pay for Mrs B’s care. The matter was resolved in early 2020 when the Council restored its funding to a level accepted as suitable.
7. The Council did not, however, reflect the effect of its decisions and the consequent lack of funding on Mrs B and Mr C personally for the time the funding was reduced. They began county court action for payment to compensate for the apparent hardship, distress and inconvenience the Council had caused them, and to recover legal costs incurred in getting the Council to change its decisions on funding.
8. By consent from all parties the court stayed the proceedings for twelve months to allow Mrs B and Mr C to complain to us. But the law says, and the courts have confirmed we cannot investigate a complaint where someone has already begun court action, and we have no discretion in the matter. Only if the court action is misconceived (such as an application for judicial review which seeks compensation) would that principle not apply.
9. The stay in proceedings does not affect this, because our discretion is removed at the point the application is made to the court.

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Final decision

10. The Ombudsman cannot investigate this complaint because Mrs B and Mr C have already begun court action about the same matter and we have no discretion.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman