Summary: We will not investigate this complaint about the Council’s assessment of Mr Y and a subsequent court decision relating to his contact with others. The law prevents us from considering the start of court action or what happened in court. We cannot achieve the outcome Mrs X seeks, as only the courts can make a new decision.

The complaint

1. Mrs X complained about the Council’s assessment of her father (Mr Y), which she said was inappropriate, intrusive and stressful. She said the Council wrongly supported another family member to apply to the Court of Protection for contact with Mr Y at their home, which was against other professionals’ advice.
2. Mrs X said the above events resulted in Mr Y unjustly having to visit the other family member, away from his wife (his main carer). Mrs X said this caused significant distress for her, her mother and her sibling.
3. Mrs X wanted the Council to reconsider Mr Y’s best interests, apply to the Court of Protection to have the previous order quashed and allow her to make a decision as Mr Y’s attorney.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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))
7. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Mrs X’s complaint to us is about the Council’s involvement before and during Court of Protection proceedings. The Council applied to the Court of Protection when agreement could not be reached about Mr Y’s contact with another family member. The proceedings resulted in a court order which stated Mr Y would have contact with the family member and would travel to their home to do so.
12. We have no legal power to consider Mrs X’s complaint about the Council’s decision to commence court proceedings. We also cannot consider what happened in court, which includes the content of the Council’s representations to court. This applies even when the court has not made the final decision, such as in this case where parties came to an agreement before the final hearing.
13. Mrs X was party to the proceedings. She had the opportunity to raise her concerns about the Council’s assessment as part of the proceedings, and to dispute the agreement that was proposed. We will not now consider the Council’s actions prior to court involvement. In any event, the proceedings commenced in January 2023 and any complaint about events before then would now also be considered late.
14. Only the courts can make changes to the previous court order. This is the case despite Mrs X holding Lasting Power of Attorney. We have no power to overturn the court order that says it is in Mr X’s best interests to have contact with the family member in their home. It is open to Mrs X to appeal to the courts for reconsideration of Mr Y’s best interests.

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Final decision

15. We will not investigate Mrs X’s complaint because it is about matters that have been considered in court, and only the courts can overturn the court order that is currently in place.

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Investigator's decision on behalf of the Ombudsman