Summary: We will not investigate this complaint about the Council’s actions regarding the late Mrs B. This is because we could not add to the Council’s response or make a different finding even if we investigated.

The complaint

1. Mrs C complained about the care and support her late mother, Mrs B, received from her Social Worker. Mrs C says whilst in hospital Mrs B was in a small side room without access to a TV, telephone, or newspaper, and had limited visitors. Mrs C says Mrs B did not lack capacity to decide where she wanted to live and wanted to return to live in her own home. Mrs C says if the Social Worker had contacted her sooner and undertaken a capacity assessment with both Mrs B and Mrs C present, they would have been able to decide a placement more suitable for Mrs B. Mrs C is also concerned the Social Worker gave personal information and took the needs of Mrs B’s partner into consideration rather than Mrs B’s own wishes and needs.

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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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34A, 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.

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My assessment

7. The Council apologised the Social Worker did not contact Mrs C prior to completing Mrs B’s capacity assessment and recognised it would have helpful to have done this. The Council says it has reminded staff of the importance of engaging with family members and introducing themselves. However, following the assessment the Social Worker did contact Mrs C about Mrs B’s care and support needs on discharge from hospital. The Council says it was aware Mrs C disagreed with the capacity assessment and of her views regarding Mrs B returning home, but in Mrs B’s best interests decided her needs should be met in a care home.
8. We could not say Mrs B had the capacity to decide about her care and support needs on discharge from hospital or make the link Mrs C claims that if the Social Worker had included her in the capacity assessment it may have altered the decision about where, in Mrs B’s best interests, she would have been placed following discharge from hospital. The Council acknowledged it may have been helpful to have Mrs C’s views and contact with her prior to the capacity assessment and has reminded staff to do this. We are satisfied this remedies any injustice caused to Mrs C from not being involved in the capacity assessment.
9. Mrs C is concerned Mrs B was left in a side room without contact and access to a TV or newspaper whilst she was in hospital. We cannot consider complaints about the NHS.
10. Mrs C says the Council has shared personal information about Mrs B. The Council has confirmed it has not shared Mrs B’s data. We could not make a finding on this point. If Mrs C is concerned there has been a breach of data she can provide her evidence to the Information Commissioner’s Office for consideration.

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Final decision

11. We will not investigate Mrs C’s complaint because we could not add to the Council’s response or make a different finding even if we investigated.

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Investigator's decision on behalf of the Ombudsman