Summary: We will not investigate this complaint about adult social care, specifically mental capacity to decide where to live. There is not enough evidence of fault in the process the Council followed to make its decision Ms C had capacity to decide where to live. Mr B felt excluded; the Council has apologised for that. It is unlikely we could add to the Council’s detailed responses to Mr B’s complaint or reach a different outcome.

The complaint

1. Mr B says the Council excluded his views and denied his input when deciding where his mother (Ms C) should live. Mr B felt side-lined and found it stressful and upsetting trying to get his views heard. The Council has failed to provide Mr B all information so that he can understand what happened.

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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
• there is another body better placed to consider this complaint.

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

3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.
7. I considered the Mental Capacity Act 2005 and associated statutory guidance.

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My assessment

8. Ms C was living in a residential care home but wished to return to her own home. The Council completed an assessment under the Mental Capacity Act to decide if Ms C could make the decision to return home. The Council decided Ms C could make that decision, so Ms C returned home with care support visits. Ms C died six weeks after returning home. Mr B believes the Council rushed to send Ms C home, that it was unsafe, and led to her death.
9. Under the Mental Capacity Act people are supported to make their own decisions if they can do so, even if others might think those decisions are unwise. Although Mr B had a lasting power of attorney for Ms C, that only gave him powers to make decisions for Ms C where she did not have mental capacity to make them herself.
10. Mr B disputes the Council’s decision because he says Ms C had dementia. Under the Mental Capacity Act you must not presume someone cannot make a decision solely because of their age, disability, behaviour or medical condition. Capacity is time and decision specific, so if there is a doubt over whether someone has capacity to make a particular decision then an assessment should be completed. This is what the Council did.
11. The Council met with Ms C several times over a two-month period to assess her capacity to decide to return home, so there is no evidence to support the Council rushed the decision. The Council followed the proper process under the Mental Capacity Act, ensuring Ms C could understand, retain, and weigh up information to make her decision. So although Mr B disagrees with the decision, I cannot say there was fault in the process that would lead to the Ombudsman questioning the outcome.
12. I understand Mr B felt excluded from the process, but as Ms C had capacity to decide, there was no duty for the Council to seek Mr B’s views. The Council has admitted its communication with Mr B could have been better, and it would have been good practice to arrange a family meeting before Ms C went home to openly discuss all concerns. The Council has apologised to Mr B. I cannot say the outcome would be any different because the Council was enabling Ms C’s wish to return home even though Mr B disagreed.
13. Mr B has made a formal request to the Council for information under data protection law, and is unhappy with how the Council has responded. The Information Commissioner’s Office is best placed to consider those concerns.

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Final decision

14. We will not investigate Mr B’s complaint because there is not enough evidence of fault in the process the Council followed to decide Ms C had capacity to decide where to live. Mr B felt excluded and the Council has apologised for that, it is unlikely we could add to the Council’s detailed responses to Mr B’s complaint or reach a different outcome.
15. Mr B wants the Council to release all e-mails and documents in response to a subject access request, the Information Commissioner’s Office is best placed to consider that complaint.

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Investigator's decision on behalf of the Ombudsman