Summary: We will not investigate Mrs X’s complaint about the Council referring concerns to the Office of the Public Guardian. This is because there is insufficient evidence of fault by the Council.

The complaint

1. Mrs X complained the Council unfairly referred her to the Office of the Public Guardian (OPG) as her brother, Mr Y’s, Lasting Power of Attorney (LPA). She said the matter caused her distress, it affected her role as her brother’s LPA and it affected her financially as she paid for legal advice. Mrs X wants the Council to provide her with an apology and make service improvements to prevent a recurrence of fault. She also wants the Council to reimburse her the legal fees she paid.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Mrs X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X had Lasting Power of Attorney (LPA) for her brother, Mr Y’s, health and welfare and financial affairs. Mr Y has care and support needs and was receiving care and support from a care provider via the Council.
6. The Care Provider informed the Council Mrs X was restricting Mr Y’s funds and had made purchases which were not in his best interest. In response to the allegations, the Council referred the matter to the Office of the Public Guardian (OPG). The OPG is a public body which protects people who lack mental capacity to make decisions for themselves which includes supervising appointed attorneys and deputies. The OPG carried out an investigation into the allegations. Its investigation did not uphold the Care Provider’s allegations against Mrs X.
7. Mrs X said:
• the allegations were false and inaccurate yet the Council accepted them and referred the matter to the OPG. Mrs X said the Council did not make her aware of the situation before the referral and so she was denied the opportunity to provide her view;
• she had sought private legal advice which had resulted in a significant legal fees; and
• the Court of Protection was now reconsidering Mrs X’s role as LPA.
8. We will not investigate Mrs X’s complaint. This is because there is insufficient evidence of fault by the Council. The Council took appropriate action when it referred the matter to the OPG. We would be critical of the Council if it did not do so. Furthermore, we recognise Mrs X’s frustration in relation to the Council not obtaining her views before it made the referral however, councils are not responsible for investigating such matters. The OPG is the appropriate body to investigate these matters which includes reviewing all evidence.
9. We acknowledge Mrs X paid for a legal service to support her with the OPG’s investigation and that she wants the Council to reimburse her with the costs however, this is not something we would recommend and so we would not be able to achieve the outcome she wants in any case.

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Final decision

10. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman