Summary: Ms B complains about the Council’s decision not to challenge a relative’s will on behalf of her mother. The Ombudsman will not investigate the complaint because the Office of the Public Guardian is best placed to deal with the matter.

The complaint

1. The complainant, who I refer to as Ms B, says the Council should act on behalf of her mother and challenge her grandmother’s will after her mother was written out of it. Ms B does not accept the Council’s reasons as to why it will not take this action and says its handling of the matter has caused her undue stress.

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The Ombudsman’s role and powers

2. 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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. In considering the complaint I reviewed the information provided by Ms B which includes the Council’s responses to her request. I gave Ms B the opportunity to comment on my draft decision.

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What I found

4. Ms B’s mother, who I shall refer to as Mrs X, lacks capacity. Appointed by the Court of Protection, the Council holds a deputyship for her and acts on her behalf.
5. Ms B’s grandmother died but her will left no provision at all for Mrs X. Ms B thinks this is wrong and that Mrs X should have been mentioned in the will given how much her grandmother cared for Mrs X.
6. Ms B asked the Council to challenge her grandmother’s will on behalf of Mrs X and offered to pay the solicitors’ initial fees to do this.
7. The Council sought legal advice and spoke to Ms B’s own solicitor. However, it decided, based on the information currently available, that it could not give approval to challenge the will on Mrs X’s behalf.
8. It told Ms B that while it noted she was prepared to cover the initial legal fee, it questioned who would be liable for fees incurred in the event of an unsuccessful challenge. It told Ms B that it did not have sufficient information from her as to the basis on which the will would be challenged and noted that people have the right to leave their estate to whoever they choose. It explained that before it could agree to a challenge it would need full details and said it would have to call a best interest meeting which would involve a family member who Ms B had said she did not want involved.
9. The Council referred the matter to the Office of the Public Guardian (OPG) and referred it back again after Ms B made known her objections to the Council’s position. However, the OPG advised that, based on the information currently available, it agreed with the Council’s approach. The Council told Ms B she was free to contact the OPG herself if she wanted to raise her concerns with it.

Assessment

10. The Council made a decision based on the information Ms B provided, the legal advice it received and the views of the OPG. While its decision was that it would not challenge the will on Mrs X’s behalf, it set out a way forward if Ms B wanted to pursue the matter further. It was open to Ms B to provide more information about the grounds for the challenge and to agree to the best interest meeting. She also had the option of contacting the OPG herself.
11. Given the OPG’s role in protecting people who lack capacity, and its supervisory powers over deputies appointed by the Court of Protection, the OPG is the body best placed to address Ms B’s concerns.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because the OPG is best placed to deal with the matter.

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Investigator's decision on behalf of the Ombudsman