Decision : Not upheld
Decision date : 03 Dec 2020
The Ombudsman's final decision:
Summary: Ms X complains the Council has refused to pay her legal fees despite agreeing to do so. There is no evidence the Council advised Ms X to obtain legal advice or agreed to fund the cost of this advice. The Council’s refusal to pay Ms X’s legal fees does not therefore amount to fault.
- The complainant, whom I shall refer to as Ms X complains the Council has refused to pay her legal fees in the sum of £900. Ms X states she obtained legal advice as the officer investigating her complaint suggested it was unfair that the Council had legal representation when Ms X did not.
The Ombudsman’s role and powers
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- considered the complaint and the documents provided by Ms X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Ms X; and
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Ms X complained to the Council several times about a complex social care matter that had been ongoing for many years. As part of the recent investigation process Ms X met with the Investigating Officer (IO) and Independent Person (IP) to discuss her complaint. During these meetings Ms X states the IO suggested Ms X should have legal advice and that it was unfair the Council had legal representation when she did not.
- Ms X instructed a solicitor to advise her on the Council’s role and responsibilities in this matter. The solicitor also wrote to the Council on Ms X’s behalf. Ms X has asked the Council to reimburse her the £900 legal fees she incurred.
- Mrs X states would not have instructed a solicitor or incurred these fees had she know the Council would not reimburse her. And she asserts the advice was only necessary because of failings and errors in the Council’s actions.
- The Council refused to reimburse Ms X these fees. It noted the IO’s report set out options for the resolution of Ms X’s complaint, one of which was that the Council fund legal representation for Ms X at a further meeting with the Council. Ms X states this meeting did not go ahead as the proposed times and location were not convenient or practical for her. The Council has confirmed that had it taken place, it would have funded Ms X’s legal representation for the meeting.
- The Council also stated it had spoken to the IO who had confirmed she advised Ms X she might need legal advice but did not say the Council should pay for this.
- Ms X has asked the Ombudsman to investigate her complaint. She maintains she took legal advice and incurred these costs based on the Council’s recommendation and that the Council should reimburse these fees.
- The documentation shows Ms X met with the IO and IP to discuss her complaint twice in the autumn of 2018. The records of the first meeting note that one of the draft desired outcomes was that a legal meeting be convened with representation for Ms X. Following the meetings with the IO and IP, Ms X engaged a solicitor.
- In January 2019 Ms X contacted the IO to query whether they had asked the Council to agree to fund legal advice for her. The IO had not completed their investigation report, but confirmed this was one of the outcomes they had discussed with Ms X. They would comment on the outcome in the report, but the Council would have to decide whether to agree to the outcome.
- The IO subsequently issued the investigation report and the Council confirmed it would arrange a meeting and fund legal representation for Ms X at the meeting. However, the Council refused to fund Ms X’s legal costs which it said she had incurred without any instigation from the Council.
- While it is clear there was a discussion about Ms X having legal representation, there is no evidence the IO or Council advised Ms X to seek legal advice or that it would fund this.
- Ms X’s correspondence with the IO in early 2019 confirms she understood the IO intended to ask the Council whether it would fund legal advice for her. It does not suggest that funding had been agreed. However, by this stage Ms X had engaged a solicitor and incurred significant fees.
- I recognise this has caused Ms X financial difficulties but do not consider the Council was at fault in refusing to pay her legal fees. I do not consider the Council’s subsequent agreement to fund legal representation at a meeting means it should be responsible for the fees she had already incurred.
- There is no evidence the Council advised Ms X to obtain legal advice or agreed to fund the cost of this advice. The Council’s refusal to pay Ms X’s legal fees does not therefore amount to fault.
Investigator's decision on behalf of the Ombudsman