Summary: We will not investigate Mr X’s complaint about the Council’s Adult Social Care services involvement with his late mother, Ms Y. Part of the complaint is late, there is insufficient evidence of fault and we could not achieve the outcome Mr X wants.

The complaint

1. Mr X complains about the involvement of Council’s Adult Social Care services with his late mother, Ms Y. He says Ms Y did not have capacity to make decisions about her care and the Council should have involved him in her care needs assessment and communicated with him sooner about her care charges. He wants the Council to write off the outstanding charges.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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

• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Mental Capacity Act 2005 (MCA) says a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
7. In 2022, Mr X’s mother, Ms Y, moved into a care home. At that time, the Council decided Ms Y had capacity to make decisions about her care and to manage her own finances. This included understanding that she was required to contribute towards the cost of her care, as detailed in her financial assessment. The Council says it sent Ms Y invoices for her care, but she did not pay them.
8. After Ms Y’s death, the Council sent Mr X an invoice for the outstanding charges, as executor of Ms Y’s estate. Mr X says Ms Y did not have capacity to manage her financial affairs, and the Council should have involved him in her care needs assessment in 2022 and in decisions about her finances.
9. Councils must presume a person has capacity unless it is established otherwise. The Council’s assessment in 2022 was that Ms Y had capacity to make decisions about her care, including the financial implications of any decision. If Mr X had disagreed with this decision at the time, he could have complained to the Council or approached us sooner. A complaint about the Council’s assessment of Ms Y’s mental capacity in 2022 is late and we will not investigate this decision now.
10. The General Data Protection Regulations set out organisations’ responsibilities in relation to individuals’ personal data. These responsibilities include not sharing personal data with a third party without the person’s consent unless this is for a legitimate purpose.
11. Given the Council’s assessment that Ms Y had capacity, the Council could not discuss her financial affairs with Mr X without her consent. It is unlikely further investigation of this point would lead to a finding of fault.
12. After Ms Y passed away, Mr X became responsible for settling her financial affairs, as executor of her estate. Given Ms Y received the care, we could not ask the Council to write off the outstanding charges. An investigation would not achieve the outcome Mr X wants.

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Final decision

13. We will not investigate Mr X’s complaint because part of the complaint is late, there is insufficient evidence of fault and we could not achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman