Summary: We will not investigate this complaint about the Council’s involvement with Ms Y. There is insufficient evidence of fault in the Council’s actions when Ms Y had mental capacity to make her own decisions about her care and support. It is too soon to consider a complaint about the Council’s actions since Ms Y has lost capacity, as it has not yet come to a decision about Ms Y’s best interests.

The complaint

1. Miss X complained the Council failed to support her mother (Ms Y), who has early onset Alzheimer’s. She says Ms Y has more recently been sectioned under the Mental Health Act and nobody contacted her to let her know. Miss X says the Council has disregarded Ms Y’s welfare and has not been helpful or empathetic.
2. Miss X says the matter has caused her significant distress and worsened her health. She wants the Council to address Ms Y’s care needs and move her to a residential home, reprimand the responsible employees, provide information and make service improvements.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, section 24A(6), 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. Miss X complained to the Council in late 2023 about a lack of support being provided to her mother. She raised concerns about Mrs Y’s memory having worsened and her declining ability to live independently without care.
7. The Mental Capacity Act 2005 (MCA) says a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The Council considered Miss X’s concerns, however it was satisfied
   Ms Y had mental capacity at that time to make decisions relating to her care and support, whether others should be involved in managing this and what should happen with her personal information.
8. The General Data Protection Regulation sets out organisations’ responsibilities in relation to individuals’ personal data. These responsibilities include not sharing personal data with a third party without the person’s consent unless this is for a legitimate purpose.
9. The Council wrote to Miss X explaining it could not respond to her complaint or share Ms Y’s information with her without Ms Y’s agreement. There is insufficient evidence of fault in the Council’s actions to warrant investigation by the Ombudsman, as it considered Miss X’s concerns but decided it could not share information about any subsequent actions due to its responsibilities under the data protection legislation. Miss X was understandably frustrated by what was, in her experience, a lack of communication and unhelpful attitude from the Council. However, the Council was not at fault for restricting the information it shared.
10. More recently, Ms Y was sectioned under the Mental Health Act 1983 and the Council has had cause to carry out a mental capacity assessment. The Council has now begun considering what would be in Mrs Y’s best interests as she has now lost capacity to make decisions in relation to her care and support.
11. The Mental Capacity Act 2005 sets out the steps the Council should take in coming to a decision about Ms Y’s best interests, which includes gathering the views of Ms Y and others, and weighing up all options. It would be too soon to consider a complaint about the Council’s best interests decision-making, as it has not yet had the opportunity to carry out this process to come to a sound decision.
12. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute fail, the Court of Protection might need to decide what is in the person’s best interests. We could not decide what is in Ms Y’s best interests. However, it is open to Miss X to complain again to the Council and then the Ombudsman about administrative issues such as unreasonable delay, if this becomes necessary.

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Final decision

13. We will not investigate Miss X’s complaint because there is insufficient evidence of fault in how the Council handled the matter when Ms Y had mental capacity, and it would be too soon to consider any complaints about its best interests decision-making process, which is ongoing.

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Investigator's decision on behalf of the Ombudsman