Summary: Mr X complained, via his representative Mr Y, about the Council changing its position about his “best interests” during court proceedings. We will not investigate this complaint. We cannot investigate what happened in court, and any outstanding disagreements about Mr X’s best interests would best be considered by the Court of Protection.

The complaint

1. Mr Y complained on behalf of Mr X, who lacked mental capacity to decide whether it was in his best interests to stay in a care home with a Deprivation of Liberty Safeguards authorisation. The Court of Protection became involved, then the Council changed its view about Mr X’s best interests during proceedings. This was shortly before Mr X was due to begin a trial period in his own home with a care package. He subsequently did not return home for a trial period, which was not in line with his wishes.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
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)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered the information Mr Y provided when he complained to the Ombudsman on Mr X’s behalf. This included orders made by the Court of Protection and the complaints correspondence.
6. Mr Y commented on a draft of this decision.

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What I found

7. Mr X has lived in a care home since 2017. During this time, he has been subject to Deprivation of Liberty Safeguards authorisations. This means the Council allowed the care home to restrict his freedoms, in his best interests, due to his inability to make an informed decision about his own care arrangements. Mr X had a representative as part of the authorisations, who supported Mr X to challenge the deprivation of his liberty in the Court of Protection. Mr Y was instructed as Mr X’s solicitor and the court considered the case in early 2018.
8. All parties agreed Mr X should go home for a trial period and agreed a date in June 2018. Therefore, the court made no order in that respect. Arrangements were made to put a care package in place. All parties agreed they would then ask the court to reconsider Mr X’s best interests after the trial period. However, five days before the agreed date for Mr X to go home, the Council applied to the court for it to decide who should pay for the care Mr X would require. It also told the court it no longer considered a trial period at home was in Mr X’s best interests.
9. The Court of Protection was best placed to make a decision about whether it was in Mr X’s best interests to return home for a trial period. It was also best placed to make directions about who would have funded the care package. In November 2018 the court ordered that it was not, after all, in Mr X’s best interests to return home for a trial period.
10. Circumstances had changed by November 2018, and the court did not retrospectively consider the Council’s sudden change in view of June 2018. Mr Y asked us specifically to consider that change in stance because of the court’s focus on what was in Mr X’s best interests at the time it was making a decision. However, the issues Mr Y complains about are not separable from the Court of Protection proceedings and the decisions the court made. It would have been open to Mr X’s representatives to ask the court to urgently determine his best interests in June 2018 when the Council’s change of position became clear. We cannot investigate what happened during court proceedings and we cannot interfere in matters that have been determined by the courts.
11. Any outstanding disagreements about Mr X’s best interests are matters for the court, and it would be reasonable to expect the complainants to take this step. Unlike the court, the Ombudsman does not have the power to decide what is best for Mr X.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because it is about matters that were before the Court of Protection, and any outstanding disagreements are also best decided by the Court of Protection.

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Investigator's decision on behalf of the Ombudsman