Summary: Mr Y complains the Council’s decision to restrict his contact directly interfered with his legal obligations as Lasting Power of Attorney. There is fault in some elements of the complaint which caused Mr Y some confusion and time and trouble. The Council will apologise and undertake the service improvements listed at the end of this statement.

The complaint

1. The Council placed Mr Y on its Restricted Person’s Register (RPR) for 12 months in April 2022 thereby restricting his contact with it. Consequently, Mr Y says the Council failed to communicate and consult with him about his mother’s placement and care needs, and as her Power of Attorney, care has been undertaken without his consent or involvement.
2. Mr Y would like to receive assurances that he will be consulted at the appropriate times about his mother’s care and support needs. Mr Y also wants the Council to ensure it will resume email and telephone contact with him when necessary and for urgent matters.

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What I have and have not investigated

3. Part of Mrs Y’s complaint concerns recent actions in relation to the Deprivation of Liberty Safeguard (DOLS) authorised by the Council for his mother, Mrs W. The events complained about occurred between March and May 2023 and after Mr Y complained to the LGSCO. I have not investigated this part of Mr Y’s complaint because it falls outside of the scope of our investigation. The LGSCO’s Investigation Manual suggests that we impose an end date beyond which we will not investigate. This should be no later than the date when the complaint was submitted to us and may well be earlier.
4. Mr Y has also raised concerns about occasions when the Council failed to respond to his Subject Access Requests (SAR), did not provide the full data or responded after the deadline. Mr Y has already complained to the Information Commissioner’s Office (ICO) about these issues. The ICO is the correct body to consider these points and so I have not investigated this part of Mr Y’s complaint.

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The Ombudsman’s role and powers

5. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended). Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). 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.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. During my investigation I considered the information provided by Mr Y and discussed the complaint with him by telephone.
9. I made enquiries of the Council and considered its response. I also referred to the Council’s ‘Unreasonable or Unreasonably Persistent Complainants’ policy as well as the LGSCO’s ‘Guidance on Jurisdiction’ and ‘Investigation Manual’.
10. Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legal and administrative background

Unacceptable behaviour and unreasonably persistent contact

11. If the Council considers a complainant is behaving unreasonably, it will consider whether to restrict the complainant’s access to its services or staff. The Council’s policy sets out what actions may constitute unreasonable or persistent behaviour.
12. When applying any restrictions, the policy says the Council will tell the complainant in writing. The letter will “…tell the complainant why we believe his or her behaviour falls into that category, what action we are taking and the duration of that action. We will also tell them how they can challenge the decision if they disagree with it”.
13. The Council can impose various restrictions, such as limiting the method, frequency or duration of contact from the complainant.
14. People may complain to the LGSCO about the Council’s use of its policy. We may investigate whether the policy has been applied correctly, but we are unlikely to criticise the Council’s judgement if there is no evidence of procedural fault in the way that decision was reached.

Lasting Power of Attorney

15. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
16. There are two types of LPA:
• Property and Finance– this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
17. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

Summary of key background events leading to the complaint

18. Mr Y has an elderly mother with dementia. I will refer to her as Mrs W. Throughout 2021, Mrs W became increasingly confused and would leave her house and wander the streets alone. Mrs W’s family were understandably concerned about her safety and her ability to continue living independently.
19. Mr Y and his sister, whom I will call Mrs Z, met with the Council in August 2021 to complete an assessment of Mrs W’s social care needs. Mr Y says the Council did not share a copy of the assessment document with him, as promised, and this prompted him to submit a Subject Access Request (SAR) to the Council in September 2021.
20. In November, Mr Y made a further SAR along with a formal complaint on behalf of Mrs W. The Council refused to respond because it said Mr Y did not have Lasting Power of Attorney (LPA) and therefore he had no authority to receive information about Mrs W, or to make a complaint on her behalf.
21. The following month, Mr Y and Mrs Z applied for joint LPA.
22. In early 2022 Mr Y had email correspondence with various officers at the Council about the decision to decline his SAR. In March 2021 an elected member told the Council they had received an email from Mr Y, which they considered to be threatening in nature. Another officer also received an email from Mr Y which they said referred to their personal life.
23. On 6 April 2022 the Council wrote to Mr Y setting out its decision to place him on its Restricted Persons Register (RPR) for 12 months. The letter outlined the nature of the restrictions and said that Mr Y could only communicate with the Council by letter – either via post or hand delivery – and that any letters needing a reply would be responded to within ten working days. The Council said any emails received from Mr Y would be deleted.
24. The letter said the Council decided to impose these restrictions because, “… the volume of communications from you is having an adverse impact on the ability of officers to provide support to other residents and I cannot allow this to continue”. The letter also said, “you have the right to advise me, in writing, of any reasons you consider these restrictions should not be imposed, which will be recorded on the register entry”.
25. Mr Y wrote to the Council later that month to confirm the OPG had accepted the registration of the LPA with effect from 14 May 2022. Mr Y also asked for a review of the Council’s decision to restrict his contact.
26. The Council considered Mr Y’s appeal on 25 April 2022. It sent a letter to Mr Y confirming its decision to maintain the contact restrictions. The Council explained that its decision was based on the significant volume of emails sent to officers and because, “… emails that you sent to [name redacted] dated 1 and 18 March 2022 which were considered threatening. [Name redacted] also showed me an email from you dated 22 February 2022 sent at 12:53 that made reference to what he does in his private life, which is not concerned with his role at within the Council and seen as a means by you to influence actions in your favour”.
27. The Council advised Mr Y of his right to approach the LGSCO for impartial consideration of his complaint.
28. On 17 May 2022 the OPG wrote to Mr Y to confirm it had registered a joint LPA allowing Mr Y and Miss Z to make health and welfare decisions on Mrs W’s behalf.
29. The following day, the Council received a letter from the OPG due to concerns it had received about the LPA. The OPG asked the Council to provide information so that it could decide whether to investigate the concerns raised.
30. On 21 September 2022, the OPG confirmed the findings of its investigation and said it was “… unable to find any information to suggest [Mrs W] lacked capacity at the time of executing the LPA. An assumption of capacity must be assumed”.
31. Mr Y made a SAR to the OPG on 14 November 2022 and it released information received from the Council during the investigation. This information included a statement from the Council which said it had refused to meet with Mr Y because of “… his demeanour in the past with threatening professionals”.
32. The Council sent a letter dated 5 December 2022 to Mr Y to inform him about the outcome of a recent visit to assess Mrs W’s care and support needs. The Council told Mr Y it proposed a residential care home setting for Mrs W due to her high care needs and tendency to wander. The Council said, “As you are one of the Joint LPA’s for Mrs [W], I am inviting you to give your views regarding Mrs [W’s] care needs and proposed care arrangement and to your view as regards what is in her Best Interests. Please notify me of your views by responding to this letter and sending it to the address provided.”
33. The Council said it did not receive a response to the letter. Mrs W moved into a care home on 14 December 2022.
34. Mr Y wrote to the Council expressing his concern about a decision to exclude him from a meeting at the care home. The Council sent a letter dated 14 December 2022 to confirm that, after checking with its officers, there was no scheduled meeting with Council staff at the home on the day in question.
35. In response to the LGSCO enquiries, the Council also confirmed it did not have any contact with the home about the RPR or Mr Y’s contact restrictions.
36. The Council sent a letter dated 22 February 2023 confirming its intention to review Mrs W’s care needs on 1 March 2023. The Council invited Mr Y to give his views in writing about Mrs W’s long-term care needs and to provide his opinion about Mrs W’s best interests.
37. Mr Y complained to the LGSCO in March 2023.

Was there fault in the Council’s actions causing injustice to Mr Y?

38. Mr Y is clear in his view that the Council’s decision to place him on the RPR directly interfered with his legal obligation to advocate for Mrs W and act in her bests interests for all matters relating to her health and welfare. Mr Y says his inclusion on the RPR affected three important social care decisions:
1. Mrs W’s move to the home in December 2022
2. The Council’s review of the placement in March 2023
3. The decision to grant a DOLS in April 2023
39. In respect of point one, I have seen a letter from the Council to Mr Y dated 5 December 2022 outlining the conclusion of its assessment which recommended a long-term residential placement. The Council invited Mr Y to provide his views on this and did not give a deadline. Mr Y says he did not receive the letter until 16 December, two days after Mrs W moved into residential care. Based on the available evidence, I cannot conclude why Mr Y did not receive the letter before Mrs W’s move and whether this was due to any fault by the Council.
40. With that said, it is evident from the files that Mr Y was in contact with Mrs W’s allocated social worker. On 3 January 2023 he said “…. in many instances for some months now she [the social worker] has been emailing me and also calling me. That is because she is a social worker who knows you cannot make decisions about someone with dementia via letter and that as the legal guardian of my mother decisions should not be made without me”. On the balance of probabilities, I consider it more likely than not the Council consulted with Mr Y in respect of point one.
41. In respect of point two, I have seen a letter from the Council to Mr Y dated 22 February 2023. This letter invited Mr Y to provide his comments for an upcoming review of Mrs W’s care needs taking place on 1 March. The letter gave Mr Y seven days to respond. He complains this was inadequate and not in accordance with the Council’s letter of 6 April 2022 which confirmed Mr Y’s placement on the RPR and said, “The enquiries [from Mr Y] worthy of a response will be issued [by the Council] within 10 working days”.
42. I have considered whether the Council should have allowed 10 working days for Mr Y to provide his views. This timescale referred to in the letter applied to the Council and the time it was allowed to respond to relevant enquiries from Mr Y. I cannot say it is fault for the Council not to allow Mr Y the same timescale to respond to its contact. This was not stated in the April 2022 letter.
43. Furthermore, I must also consider injustice and specifically whether the response time meant that Mr Y lost an opportunity to provide his views about Mrs W’s care. I note that 13 days after Mrs W’s care review, the Council consulted Mr Y during a Deprivation of Liberty Safeguard (DoLS) assessment. The Council recorded Mr Y’s views, “Spoke to [Mr Y] who advised that he was very happy with care that is being provided by the care staff at the care home”.
44. Mr Y also says he did not receive the letter until 4 March. Based on the available evidence, I cannot conclude why Mr Y did not receive the letter before the review and whether this was due to any fault by the Council.
45. On the balance of probabilities, and for the reasons explained in the paragraphs above, I consider the claimed fault did not cause a significant injustice in respect of point two because Mr Y was involved with decisions about Mrs W’s care.
46. I have not investigated Mr Y’s concerns in respect of point three for the reasons outlined in paragraph three of this statement.
47. I have also considered more broadly whether the Council applied its own policy correctly when implementing the restrictions and placing Mr Y on its RPR. Having reviewed the available records, it is my view there is no fault in the overall application of the restrictions.
48. However, there is some fault in how the Council communicated its decision on 6 April 2022. When reviewing Mr Y’s appeal, the Council introduced new concerns; namely that Mr Y sent emails which the recipients considered to be threatening. This reason was not cited in the original letter to Mr Y. This is fault because the Council’s policy makes clear that it will tell the complainant why their behaviour is deemed unacceptable or why their contact is unreasonably persistent.
49. The fault caused Mr Y some injustice in the form of confusion. The failure to include all the key reasons in the Council’s initial letter meant that Mr Y did not have the opportunity to make a full challenge when he submitted his review. With that said, I am satisfied that Mr Y did make his objections known once he became aware of the Council’s rationale, but the Council maintained its view. There is no merit in asking for the Council to conduct another review because Mr Y is no longer on the RPR.
50. Furthermore, on balance I am not persuaded that any additional consideration of this point would have led to a different outcome. This is because one of the primary reasons for the restrictions was the volume and frequency of Mr Y’s emails, which he continued to send after 6 April 2022. The Council was therefore entitled to impose and maintain the restrictions, irrespective of the fault. In my view, a proportionate remedy for the confusion caused is an apology and the service improvement listed in the final section of this statement.
51. The Council’s policy also makes clear that officers will review RPR entries every six months to consider whether the restrictions need to be varied. There is no evidence of any such review in the files I have seen. However, I am not persuaded this failure caused Mr Y an injustice because he continued to email the Council, despite the restrictions. On balance, I consider it is unlikely the Council would have decided to reduce or remove those restrictions at the six-month point.
52. Finally, Mr Y has raised concerns about confusion amongst Council officers about his status on the RPR and his role as LPA. In March 2023, and whilst Mr Y was still on the RPR, the Council responded to a SAR. As a result of this, Mr Y received a copy of the RPR entries. The Council explained it is a ‘live’ database and so it was only able to share a copy of how the database appeared at that point in time. The redacted copy received by Mr Y said, “[Mr Y] has sent numerous emails regarding access to his mother’s information which has been declined as he does not have her consent”.
53. The records show the OPG granted LPA in May 2022; the month after Mr Y’s placement onto the RPR. Following its internal investigation, the OPG confirmed in September the LPA was correctly executed and therefore valid. Despite this, in March 2023 the Council’s RPR still stated that Mr Y did not have consent. Mr Y speculates that this caused confusion with officers in the social care department who were unsure about Mr Y’s authority to act on Mrs W’s behalf.
54. The original letter sent to Mr Y on 6 April 2022 invited him to express his objections so that these could be recorded on the RPR. This could have clarified Mr Y’s status as LPA. There is no evidence of his objections on the March 2023 entry I have seen. This is also fault.
55. In response to our enquiries, the Council said the RPR is not updated or amended in light of new information because it forms an official record. The entries on the RPR are based on the original reason for the contact restrictions. We asked the Council how its officers are made aware internally of a person’s status on the RPR. The Council said relevant officers receive an alert and refer to the database for information.
56. In my view, the failure to amend or update entries is fault. The Council says the RPR is a live system which officers rely upon for information, but despite this it does not update the entries when new, and potentially important, information comes to light. While we recognise why the Council would not want to amend the contents of the original entry, any new and relevant information should be noted alongside the original entry.

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Agreed action

57. Within four weeks of my final decision, the Council will providence evidence to the LGSCO to show it has:
• Apologised to Mr Y for any confusion caused by its failure to include all relevant grounds for implementing contact restrictions in its 6 April 2022 letter;
• Apologised to Mr Y for any confusion caused by wrongly recording on the RPR that he did not have consent to receive information about Mrs W, despite having LPA since May 2022; and
• Informed relevant officers responsible for Mrs W’s social care that Mr Y is not currently on the RPR.
58. Within six weeks of my final decision, the Council will also provide evidence to show it has:
• Reminded any officers responsible for writing RPR entries to ensure they are appropriately updated with any key changes, such as when a person has LPA. This is important to ensure the attorney can fulfil their legal duties in respect of the person lacking capacity; and
• Reminded officers of the requirement to update the RPR on occasions when the Council has invited the person to have their objections recorded on the database.

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Final decision

59. I have completed my investigation. There is fault in some elements of Mr Y’s complaint which caused him injustice. The actions listed above provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman