Summary: We will not investigate this complaint about the Council allowing Mr Y to pay legal bills. There is not enough evidence of fault or significant enough injustice to warrant an investigation, and matters have already been considered in court.

The complaint

1. Mr X complains on behalf of his adult child, Mr Y. Mr X says the Council should not have allowed Mr Y to pay his Accredited Legal Representative (ALR) whilst his capacity was still being decided. Mr X says both he and Mr Y have suffered financial loss.

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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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X is unhappy that Mr Y was allowed to pay £3,700 to his ALR while awaiting the Court of Protection's decision regarding his capacity to manage his affairs. However, every adult must be presumed to have capacity to make their own decisions unless it is established otherwise. The Court of Protection, which is responsible for decision-making in relation to adults who may lack capacity, subsequently determined that Mr Y had capacity to make decisions about litigating the proceedings, including making payments without restriction. Therefore, although Mr X disagrees with the Council's decision to allow the payment, this does not amount to evidence of fault by the Council.
7. Because the Court of Protection considered Mr Y's capacity to conduct litigation and make decisions connected to those proceedings, including the payment of legal fees, this matter has already been considered and determined by a court. The Ombudsman cannot investigate matters that have been decided by a court, nor can we question decisions relating to the conduct of litigation. Therefore, we cannot consider this aspect of the complaint further.
8. Within its decision, the Court of Protection ordered Mr Y’s costs to be assessed by the court, meaning he will likely be reimbursed for any costs incurred. So, I do not consider that a significant enough injustice to warrant the Ombudsman devoting time and public money to investigating the complaint.

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Final decision

9. We will not investigate Mr Y’s complaint because there is not enough evidence of fault, the matters have already been considered in court and there is not significant enough injustice to warrant investigation.

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Investigator's decision on behalf of the Ombudsman