Summary: We will not investigate Ms X’s complaints the Council wilfully disregarded legal advice, shared the wrong version of our previous decision, made defamatory comments about her and failed to follow a court order. Part of the complaint is about matters we already considered in 2017 and, despite Ms X since finding out new information, reinvestigation is not warranted. Other parts of the complaint are about information shared in court, which we cannot consider, and issues that would best be dealt with in court as part of the ongoing proceedings.

The complaint

1. Ms X complained the Council:
• wilfully disregarded legal advice to apply to court;
• knowingly shared the wrong version of our previous decision with the court;
• made defamatory and libellous comments about her in court submissions; and
• failed to send a further application to the court, as instructed in a 2019 order.

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

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How I considered this complaint

5. I considered the information Ms X provided when she complained to us.
6. I gave Ms X the opportunity to comment on my draft decision.

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What I found

Ms X’s complaint the Council wilfully disregarded legal advice

7. We previously considered a complaint from Ms X about her mother, who receives care provided by the Council, and issued a decision in 2017. We found no fault in the Council’s decisions about what action to take in light of Ms X’s concerns of abuse against her mother.
8. In 2019, Ms X was provided with an unredacted version of minutes from a meeting she had attended in 2015. She had previously received a redacted copy only. Ms X says the unredacted minutes showed the Council’s legal team advised it in 2015 to take the matter to the Court of Protection. Ms X says the Council is at fault as it wilfully disregarded that advice, and she believes it sent her the redacted version to cover this up. Ms X had instead begun proceedings herself.
9. I have considered the Council’s recent explanation of why it did not apply to the Court of Protection in 2015. It explained that court is a last resort, and it did not believe a referral was needed at that time while it was attempting less formal methods of resolving disagreements. I have also considered the Council’s explanation of why the family were only provided a redacted version of the meeting minutes. It says part of the meeting was attended by professionals only, and the family were not provided the detail of those discussions. In any event, legal advice would usually be redacted for sharing outside of council staff, because it is legally privileged. There is no evidence we would find fault in the Council’s actions. We could not say the Council had an ulterior motive for redacting the minutes as Ms X believes.
10. Despite new information becoming known to Ms X, this issue is inextricably linked to events from 2015 which we already previously considered. Central to this new complaint is Ms X’s belief the Council did not properly deal with abuse towards her mother. We found no fault in the Council’s decisions about what action to take and how to manage the risk posed. Despite Ms X having more recently found the Council did not take an option available to it, we already previously satisfied ourselves it followed the correct process to decide which course of action to take. The new information does not justify revisiting our previous decision of 2017.

Issues arising from court proceedings

11. Ms X says the Council knowingly shared the wrong version of our previous decision with the court. The Council has acknowledged it shared the wrong version but says this was accidental. It believes this did not have a material impact on proceedings.
12. Ms X says Council officers also made defamatory and libellous comments about her in court submissions. We cannot investigate what happened in court, which includes information submitted for consideration in proceedings. This means we cannot consider either of these issues.
13. In any event, claims of libel and defamation are not matters for the Ombudsman. It is open to Ms X to consider taking legal action relating to the comments she says were libellous and defamatory.
14. Ms X says the Council failed to send a further application to the court by April 2020, as instructed in a court order made in 2019. This matter would best be considered by the courts, rather than the Ombudsman, to determine to what extent this has impacted proceedings. It is reasonable to expect Ms X to raise this matter in court because proceedings are ongoing. We should not investigate this.

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Final decision

15. The Ombudsman cannot investigate parts of Ms X’s complaint, and will not investigate others. Parts of the complaint are about information shared in submissions to court, which we have no power to investigate, and issues which would best be dealt with in court, which we should not investigate. Another part of the complaint is about an issue we previously considered and despite new information having come to light for Ms X, reinvestigation of issues we previously made a decision about is not warranted and there is no evidence we would find fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman