Summary: We will not investigate this complaint about the Council’s removal of the complainant’s family member from their care. There is insufficient evidence of fault in the Council’s decision-making, so we cannot question its decisions. Only the courts can make a decision in the circumstances.

The complaint

1. The complainant, who I will refer to as X, complained the Council refused to investigate criminal behaviour of its employees. X says the Council, in retaliation to them complaining, came to their house with the police and threatened to force the door down, and the police arrested X. The complainant says they do not know where their family member (who I will refer to as Y) is, and they have lost the opportunity to be involved in the Council’s assessment and decision-making relating to Y. X wants the responsible staff dismissed, service improvements and a written apology. They want the Council to tell them where Y is.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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))

5. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police. (Local Government Act 1974, sections 25 and 34(1), as amended)
6. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Parts of X’s complaint relate to allegations of criminal behaviour by the Council officer when they attended their property. We, like the Council, cannot investigate allegations of criminal behaviour such as illegal entry, harassment, trespassing and burglary. These are matters for the police.
10. We also cannot investigate the actions of the police. The Council is not responsible for the action the police decided to take. It is for the police to decide if there is sufficient basis to arrest someone. Should X wish to pursue a complaint about the police, the appropriate body to contact is the Independent Office for Police Conduct.
11. X’s complaint ultimately centres around a belief the Council’s actions were disproportionate and unwarranted. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
12. The Council’s removal of Y from X’s address was not retaliatory due to X complaining, and was based upon clear and justified concerns of risk to Y. The purpose of an enquiry is to decide what action needs to be taken. The Council followed the correct processes and made a decision about the steps that were necessary to protect Y from harm. There is no evidence of fault in the Council’s decision-making. In the absence of administrative fault, we cannot question the decision itself. It is not for us to replace the Council’s professional judgement with our own. Only the courts can make a decision where there is a dispute about what is in a person’s best interests. It is open to X to seek legal advice.
13. We cannot decide the Council should tell X where Y is or that contact should be re-established, because only the courts could make these decisions. We also cannot recommend disciplinary action against individual Council employees. We therefore could not achieve the outcomes X seeks, even if we were to consider the matter further.
14. X’s complaint includes an allegation the Council’s officer caused £900 of damage when entering their property. Where someone complains to us about damage to property or injury, we will normally signpost them to the courts. There is no good reason for us to consider the matter instead. It is reasonable in this case for X to use the small claims process relating to this if they want to be compensated for the cost of repairing damage.

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Final decision

15. We will not investigate X’s complaint because there is insufficient evidence of fault in the Council’s decision-making.

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Investigator's decision on behalf of the Ombudsman