Summary: The Ombudsman will not investigate Mr A’s complaint about the way he has been treated by the Council regarding his mother’s, Mrs B’s care. This is because the Ombudsman could not say there is any fault with the actions taken by the Council regarding the contact it has with Mr A and he does not have consent from Mrs B to complain on her behalf.

The complaint

1. Mr A says the Council has a vendetta against him and will not discuss his mother’s care needs with him since he had cause to complain about the report prepared by Mrs B’s social worker. Mr A says as Mrs B’s carer the Council should discuss all concerns about her care and accommodation needs with him. Mr A says the Council should not have cancelled Mrs B’s bank cards and should take action against the social worker who has a vendetta against him.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

4. I considered the information and documentation Mr A and the Council provided. I sent Mr A a copy of my draft decision for comment.

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What I found

5. Mr A complained to the Council about its decision not to speak to him about his mother’s care and its failure to properly investigate his allegation that a social worker was rude and abusive to him.
6. The Council responded in May 2019. It explained Mrs B is deemed to have capacity, and without her consent, it cannot disclose any information about her to him or discuss any matters relating to her. Mr A says Mrs B suffers from mental ill health and has fluctuating capacity.
7. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:

• Because s/he makes an unwise decision.
• Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• Before all practicable steps to help the person to do so have been taken without success.

8. The Ombudsman could not say Mrs B lacks capacity to make decisions. Without consent from Mrs B confirming she wants Mr A to act on her behalf the Ombudsman will not investigate Mr A’s complaint that the Council will not discuss her care needs with him.
9. If Mr A disputes Mrs B has capacity to make decisions about her care needs, he can ask the Court of Protection to consider his views. Information about the Court of Protection can be found on the website below.

https://www.gov.uk/courts-tribunals/court-of-protection

10. Mr A is concerned the Council has not investigated his concerns about the abuse he says he received from Mrs B’s social worker. The Council says it is correct the social worker has not communicated with him since January 2019. It advised Mr A this was because he was rude and abusive to the social worker during a call overheard by two senior staff members in the team. It confirmed it had noted Mr A’s concerns about inaccuracies in the report regarding Mrs B’s recollection she had broken her arm in the past, which he says she has not.
11. The Ombudsman was not party to the conversation and did not hear what was said in the phone call. While Mr A’s recollection of what was said in the call differs to that of the social worker and those who witnessed it, the Ombudsman could not make a finding on this point when he was not there.
12. The Council wrote to Mr A in February 2019 and advised it is would not tolerate abusive and aggressive behaviour. It advised Mr A if he wanted to speak to someone about Mrs B’s care he could meet with two staff members or speak to a duty Manager. Mr A can speak to staff about Mrs B and raise any concerns he has, so the Ombudsman could not say this is fault.
13. The Council explained to Mr A it knows Mrs B has delusional thoughts which is sometimes expressed as accusations. It always records what Mrs B says and if serious enough, passes onto its Multi-Agency Safeguarding Hub (MASH) to make further enquiries. The Ombudsman could not say this is fault.
14. The Council explained Mrs B decided to change the way her finances were managed, and it cancelled the bank cards at her request. It says social workers planned to visit Mrs B regarding her care and her apparent decision to reverse the decision to allow Mr A access to her bank account and funds. However, it says Mr A refused to allow workers to speak to Mrs B alone, so it was unable to determine Mrs B’s wishes. In the absence of permission from Mrs B allowing the Council to share information about her the Ombudsman could not say there is any fault.
15. Mr A says the Council is wasting his time travelling to different accommodation providers who it says can meet Mrs B’s needs, but Mr A says she cannot afford. The Council has explained Mrs B is currently living in a short-term assessment placement and needs a permanent suitable accommodation which it is working to identify and secure. It has explained to Mr A it needs to consult and involve Mrs B in this process. The Ombudsman could not add to this or make a different finding even if he investigated. The Council has explained what it is doing to secure suitable permanent accommodation for Mrs B.

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Final decision

16. The Ombudsman will not investigate this complaint. This is because the Ombudsman could not say there is any fault with the actions taken by the Council regarding the contact it has with him and he does not have consent from Mrs B to complain on her behalf.

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Investigator's decision on behalf of the Ombudsman