• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary: We will not investigate Mr B’s complaint about the way he has been treated by the Council. This is because the injustice Mr B claims is not as a result of the actions of the Council.

The complaint

1. Mr B says he was not consulted or included in Ms C’s care planning and failure to do so has resulted in wrong information being recorded about his long-term relationship with Ms C. In addition, Mr B is concerned Ms C’s Care Provider failed to undertake a Best Interests Decision (BID) to determine whether she wanted to be moved from her property and have no contact with him. Mr B says because of this Ms C’s brother illegally removed him from their shared home and assaulted him. Mr B says these are serious safeguarding issues which the Council should investigate.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.
7. The complainant had an opportunity to comment on my draft decision.

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My assessment

8. The Council apologised it did not consider Mr B’s views or undertake a carers assessment for him when he was providing care to Ms C. The Council said if it had of done this, it would have clarified what care he was providing to Ms C but explained this would not have influenced the outcome of the assessment or alter the fact that it could not share Ms C’s personal information with him. We are satisfied an apology remedies the injustice caused to Mr B from the Council’s failure to include him in Ms C’s Care Needs Assessment. If Mr B believes he should have access to information about Ms C which the Council is refusing to give him, he can ask the Information Commissioner’s Office (ICO) to consider if he should be given it. Information about the ICO can be found on the website below:

How to access information from a public body | ICO

9. Mr B says he has been assaulted and forcibly removed from the home he shared with Ms C for the past 20 years. These are police matters and I understand Mr B has contacted the police about this.
10. Mr B says Ms C has been taken away from her home and he is being denied access to her see her or communicate with her.
11. The injustice Mr B is claiming is not as a direct result of the Council’s actions. Mr B says Ms C would want to have contact with him and would not have allowed her brother to forcibly remove him from her flat.
12. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that s/he lacks capacity. A person should not be treated as unable to make a decision:

• Because s/he makes an unwise decision.
• Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• Before all practicable steps to help the person to do so have been taken without success.

13. The Ombudsman could not say Ms C lacks capacity to make decisions about where she wants to live or who she wants contact with. Without consent from Ms C confirming she wants Mr B to act on her behalf the Ombudsman will not investigate Mr B’s complaint about her care and support needs.
14. If Mr B disputes Ms C has capacity to make decisions about her care needs, he can ask the Court of Protection to consider his views. Information about the Court of Protection can be found on the website below.

https://www.gov.uk/courts-tribunals/court-of-protection

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Final decision

15. We will not investigate this complaint. This is because there is not enough evidence of the Council’s actions causing Mr B a significant injustice to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman

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