Summary: We will not investigate this complaint about the Council’s failure to investigate two of the four complaints made by Mr X concerning the care and direct payments relating to his partner, Ms Y. This is because we are unlikely to find sufficient evidence of fault and there may be a more suitable agency better placed.

The complaint

1. Mr X complains about the Council’s failure to investigate two of his complaints concerning care and support matters relating to his partner, Ms Y, for whom he is an informal carer. Mr X says the Council is not acting in the best interests of his partner and he has been left excluded and feeling powerless.

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The Ombudsman’s role and powers

2. 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
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

3. I considered information provided by the complainant which includes the Council’s response. I also considered the Ombudsman’s Assessment Code.

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My assessment

Court-appointed Deputies

4. If there is a need for continuing decision-making powers and there is no relevant Lasting Power of Authority, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

Best interest decision making

5. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
6. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Mr X’s complaint

7. Mr X says he is the primary informal carer for his partner Miss Y who is non-verbal. She is unable to provide consent to this complaint and Mr X has no legal authority to represent Miss Y.
8. The Council acts as Miss Y’s Court of Protection appointed deputy for welfare decisions. The Council has appointed a professional advocate to act for Miss Y who Mr X has complained about.
9. I note the Council accepted two of Mr X’s recent complaints to investigate. But it refused two accept two other complaints about a social worker/ Miss Y’s care/Miss Y’s Direct Payments. The Council told Mr X he was ‘not a suitable representative’ to bring those complaints on behalf of Miss Y.
10. We will not investigate as there is insufficient evidence of fault. The context for the Council’s decisions is its legal status as a deputy. This accords with the Ombudsman’s complaints guidance to Councils that they should generally ensure any representative has consent or other lawful basis for acting on another individual’s behalf.
11. As Mr X does not consider the Council is acting in Miss Y’s best interests, he may wish to approach the Office of the Public Guardian (OPG). The OPG oversees the work of deputies and is better placed to consider this complaint.

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Final decision

12. We will not investigate Mr X’s complaint because there is not enough evidence of fault to justify investigating and there is another body better placed to consider.

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Investigator's decision on behalf of the Ombudsman