Decision : Closed after initial enquiries
Decision date : 09 Sep 2021
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the care provided for Mr B’s disabled son. This is because it would be reasonable for Mr B to take the matter to court.
- The complainant, who I will refer to as Mr B, complains that the carer commissioned by the Council has failed to respond properly to his concerns about an incident during which his son was injured.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I considered information provided by the complainant and the Council.
- I considered the Ombudsman’s Assessment Code.
- Mr B’s son is disabled and is provided with care by the Council. In 2020 the Council commissioned a care provider to provide respite care for him. Mr B says the carer was not competent and caused an injury to his son. He argues that the care provider was negligent.
- Mr B complained to the Council. The Council responded at Stage 1 of its complaint procedure in February 2021. It set out that the care provider had been suspended and would remain so in the interim. It invited Mr B to ask for his complaint to be escalated to Stage 2 of the procedure if he was not satisfied. I have seen no evidence that he did so. We will not therefore pursue this matter further.
- Mr B complains the care provider has failed to respond to his concerns. Specifically, he says it has not explained how the carer came to be assigned and has not apologised. He wants it to provide details of its insurance.
- We will not investigate this complaint. When considering complaints, the Ombudsman treats contractors’ actions as those of the Council. We have no power to consider the contractor separately. As the Council has commissioned the care for Mr B’s son, it is responsible for the provider’s actions. The complaint turns on whether the Council’s actions amounted to negligence, and whether this negligence was responsible for the injury his son suffered.
- Negligence and liability for personal injury are matters for the courts, not the Ombudsman. Only a court can decide them. Therefore, if Mr B wants to establish that the Council was negligent, it would be reasonable for him to take the matter to court. The Ombudsman will not intervene,
- We will not investigate Mr B’s complaint because it would be reasonable for him to pursue the matter in court.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman