Summary: We will not investigate this complaint that the Council’s adult social care service has ignored the complainant’s concerns about her brother. This is because there is insufficient evidence of fault by the Council and we could not add to what the Council has told her.

The complaint

1. The complainant, Mrs B, complained that the Council’s adult social care service has ignored her concerns about her brother.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant, including her photographs.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs B told us her brother, Mr C, is vulnerable and has complex needs. She said he had been in residential care for over 40 years but the Council then placed him in a flat. She raised her concerns about her brother’s welfare with the Council. For example, she said he was not coping with bills and he was neglecting himself and his home. She told us this would not be happening if the Council was meeting her brother’s social care needs.
6. The Mental Capacity Act 2005 says people must be assumed to have capacity unless it is established that they lack capacity. The Act also says a person is not to be treated as unable to make a decision merely because he makes an unwise decision.
7. We cannot make decisions on a person’s mental capacity. If Mrs B disputes Mr C’s capacity to make decisions about his care needs, she can ask the Court of Protection to consider this issue. If there is a dispute about a person’s mental capacity to make a decision, the Court of Protection is the appropriate body to decide the matter. The Court of Protection also makes decisions about when someone can be deprived of their liberty.
8. The Council has given some general information to Mrs B. It said Mr C’s needs were being met under section 117 of the Mental Health Act 1983. The Council said Mr C received two to one care in the daytime and one to one care at night. The Council told Mrs B Mr C had been assessed as having capacity to make his own decisions about care and support needs and where he lives. The Council said Mr C had said which relative he wanted involved in the review of his care needs.
9. It is clear Mrs B has significant concerns about her brother. But the law does not give her an automatic right of access to her brother’s records, including the assessment of his care needs. The Council’s officers must act within the requirements of the General Data Protection Regulation and the Data Protection Act 2018. If service users have capacity to make a decision about whether their personal information should be disclosed to a relative, they must consent to the sharing of information. Mrs B has made a formal complaint to the Council about Mr C. But the Council told her it could not proceed with her complaint without Mr C’s consent. That was not fault. The Council could not respond to Mrs B’s complaint without releasing Mr C’s personal data to her. It did not have his consent to do this. We could not add to what the Council has said to Mrs B because it has acted within the requirements of the General Data Protection Regulation and the Data Protection Act 2018.

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Final decision

10. We will not investigate Mrs B’s complaint because there is insufficient evidence of fault by the Council and we could not add to what the Council has told her.

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Investigator's decision on behalf of the Ombudsman