Summary: We will not investigate this complaint about the Council’s failure not to include Ms B in her sister’s, Ms C’s, best interests decision making process. This is because there is not enough evidence of fault with actions taken by the Council to warrant an Ombudsman investigation.

The complaint

1. Ms B complained the Council failed to consult her about her sister’s, Ms C’s, best interests, involve her in decision making regarding Ms C, failed to address all her concerns regarding her complaint and failed to respect hers and Ms C’s right to enjoy a family life under Article 8 of the Human Rights Act. Ms C wants the Council to: provide her with information about Ms C’s capacity; remove any restrictions in place and allow her to support Ms C now and in the future, especially in view of the ages of her father and step-mother; apologise and clarify what changes it will make to ensure it complies with the principles of Best Interest Decisions.

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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
• any injustice is not significant enough to justify our involvement, 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,
• it would be reasonable for the person to ask for an organisation review or appeal.

(Local Government Act 1974, section 24A(6))

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 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)

5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms B says she should be consulted and involved in Ms C’s care planning and any decisions taken in her best interests, as well as her father, who is Ms C’s next of kin, but we could not make this finding. Ms B can apply to the Court of Protection for deputyship for Ms C if she wants to be consulted and involved in making decisions for her. Only a court can decide who should act on behalf of someone who lacks capacity and without confirmation from the court, we could not consider Ms B is suitable to represent Ms C. It would be reasonable for Ms B to ask the court to consider her application to be granted deputyship for Ms C.
9. Ms B can make a Freedom of Information request if she want information about Ms C. If the Council refuses to provide Ms B with the information she wants, she can ask the information Commissioner’s Office (ICO) to consider her request and it would be reasonable for her to do so. Information about the ICO can be found on the website below:

Make a complaint | ICO

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Final decision

10. We will not investigate Ms B’s complaint because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman