Summary: We will not investigate this complaint about care and residence for the complainant’s father. This is because there is no evidence of fault in the Council’s actions where they affect the complainant, and she is not a Suitable Representative for her father as his interests in the matter she raises are to be considered at a Best Interests Meeting.

The complaint

1. The complainant, who I refer to as Miss L, says that the Council:
• Completed an inaccurate capacity assessment for her father, Mr L. She says the assessment misrepresented and her family;
• Refuses to allow the Mr L to return home to live with his family, as Miss L believes he wants; and
• Has not taken action regarding poor quality care at the home where the Mr L is currently living.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

4. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

6. I considered the information provided by Miss L and I have sent her a draft decision for her comments.

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What I found

7. Miss L’s father lives in a residential home. Miss L says that she and her family want him to come home and live with them. She says that Mr L also wants to do this, but that the Council refuses to allow him to.
8. Miss L further says that the Council claims that Mr L does not have capacity to make such a decision with any degree of understanding. The Council has conducted an assessment of his capacity, which supports its view. However, Miss L says the assessment was not properly carried out and contains inaccurate information about her and her family.
9. I will not investigate the matters raised in the complaint, for a number of reasons.
10. Firstly, I cannot consider Miss L to be a Suitable Representative for Mr L, as although she argues for what she believes to be his wishes and for outcomes she believes to be in his best interests, those are disputed. Mr L’s wishes and his best interests are to be explored in a Best Interests meeting, at which Miss L will be one of the attendees providing a view.
11. Secondly, as far as Miss L claims a personal injustice, I have seen no evidence of fault by the Council. I have seen nothing to indicate that the capacity assessment was not carried out properly, although I recognise that Miss L does not agree with its content and conclusions.
12. Additionally, despite acknowledging that Miss L would like her father to be at home with the family, there is no fault in the Council taking a more cautious path and taking account of all views at a Best Interests meeting.
13. Finally, Miss L complains about the quality of the care provided at the residential home. We will not investigate this complaint, as I cannot consider Miss L to be a Suitable Representative to make a complaint on Mr L’s behalf, as the quality of care will need to be considered at the Best Interests meeting.
14. Additionally we would be unable to consider this aspect of the complaint as Miss L says that she is taking legal action on the matter. This would take it out of our jurisdiction.

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Final decision

15. I will not investigate this complaint. This is because there is no evidence of fault by the Council in the matters relating to Miss L, and she is not a Suitable Representative for Mr L.

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Investigator's decision on behalf of the Ombudsman