Summary: We will not investigate this complaint about the Council’s actions in relation to a dispute about Ms Y’s mental capacity and best interests. Other bodies, including the courts, are best placed to consider the matters at the centre of the complaint. We could not, in any event, achieve a meaningful outcome by investigating the matter.

The complaint

1. Mr X complained the Council:
• ordered him to allow a relative to remain in his mother’s (Ms Y’s) home free of charge;
• declined to share a capacity assessment with him; and
• failed to respond properly to his complaints and wrongly signposted him to the Information Commissioner’s Office (ICO).
2. Mr X said this caused distress to him and the person with whom he shared power of attorney. He said he worried about risk to Ms Y if the relative were to remain living at her home. He wanted the Council to share its capacity assessment, to apologise and pay a financial remedy including compensation for £10,000 loss of earnings.

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The Ombudsman’s role and powers

3. 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)
4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, 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, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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)
6. 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.

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The Council assessed Ms Y as having the mental capacity to decide to allow a relative to remain living in her home free of charge. It wrote to Mr X stating he needed to allow the relative access to Ms Y’s property.
10. Mr X did not agree Ms Y had capacity to make this decision. Mr X held Lasting Power of Attorney (LPA) jointly with another family member. He explained he did not believe allowing the relative to remain in Ms Y’s home would be in her best interests. His reasons included concern the relative was stealing from Ms Y.
11. Mr X requested a copy of the Council’s capacity assessment, to help resolve the disagreement. The Council shared a redacted version of the assessment. It explained it had made a referral to the Office of the Public Guardian (OPG) due to concerns about Mr X’s actions as attorney. The Council said it would reconsider its position on sharing the assessment after this had reached conclusion.
12. The Council says it shared the capacity assessment with Mr X after the OPG had ended its involvement. The Council also then reassessed Ms Y’s capacity and found she lacked capacity.
13. Mr X complained to the Council. He then brought his complaint to us and said the Council had failed to respond properly to his complaints and had wrongly signposted him to the ICO.
14. The ICO is the body best placed to consider organisations’ responses to requests for information. Mr X characterised the matter in his complaint to us as being a request under the Mental Capacity Act to assist him in his role as attorney. However, the Council had a duty to consider the request in line with the relevant legislation on information-sharing. This may have included the General Data Protection Regulation and the Freedom of Information Act. The Council signposted Mr X to the ICO after responding to his request. The Council told us Mr X did refer the matter to the ICO, and says the ICO confirmed the Council had acted appropriately.
15. It would not be proportionate for us to also consider the matter when the ICO has already done so. However, for the avoidance of doubt there would not be sufficient evidence of fault by the Council to justify us investigating this complaint in any event. The Council had raised a concern with the OPG and as such, decided it would not share an unredacted version of its capacity assessment until the OPG had made a decision. Where a council has properly considered a decision, it is not our role to substitute that decision for one of our own.
16. Further investigation by us would also not achieve a different outcome. The Council shared its assessment with Mr X and it later conceded that Ms Y lacked capacity. Mr X was not prevented, in the meantime, from referring the matter to the Court of Protection; despite not having the full, unredacted assessment, he knew there was disagreement about Ms Y’s capacity and best interests.
17. While there is a cost associated with involving the Court of Protection, it is best placed to resolve such disputes. We could not decide whether a person has capacity and what is in their best interests. Only the court could have done so, given the dispute. The Council had assessed Ms Y as having capacity and therefore acted in line with her stated wishes at the time by telling Mr X the relative should be allowed access.
18. It is also not the Ombudsman’s role to assess economic losses and award compensation, and we normally refer people to the courts where this is their aim. We cannot achieve Mr X’s sought outcome of £10,000 compensation for loss of earnings. It is open to him to seek legal advice in respect of this.
19. It is not a good use of public resources to investigate complaint-handling alone when we are not investigating the substantive matters. We will not investigate the concerns Mr X raised about complaint-handling in isolation.

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Final decision

20. We will not investigate Mr X’s complaint because other bodies, including the courts, are best placed to consider the matters at the centre of the complaint. We could not achieve a meaningful outcome by investigating the matter.

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Investigator's decision on behalf of the Ombudsman