Summary: The Ombudsman will not investigate Mrs B’s complaint about the Council’s refusal to investigate her concerns under its statutory processes. This is because where he is not investigating the substantive matters, he will not usually consider how a Council has considered the complaint. That is the case here.

The complaint

1. Mrs B says her daughter, Ms C, was taken covertly from her home when she was away, without consulting her or explaining why. Mrs B says the Council has refused to consider her complaint under its statutory procedures. Mrs B says the family are affected by the Council’s actions and her concerns should be investigated properly. Mrs B says she wants to know why the Council took the action it did and wants it to confirm Ms C is being properly cared for.

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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)

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How I considered this complaint

3. I considered the information and documentation Mrs B provided. I sent Mrs B a copy of my draft decision for comment.

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What I found

4. Mrs B complains about the actions of the Council when it assisted Ms C to move out of her home while she was away. Ms C has capacity and has not given her consent for the Ombudsman to consider a complaint about her.
5. The Council says it will not investigate Mrs B’s complaint because she does not appear to be a person who may make a complaint as defined under part 5 of the National Health Service Complaints (England) Regulations 2009.

A complaint may be made by-

• a person who receives or has received services from a responsible body; or

- a person who is affected, or likely to be affected, by the action, omission or decision of the responsible body which is the subject of the complaint.

(2) A complaint may be made by a person (in this regulation referred to as a representative)

acting on behalf of a person mentioned in paragraph (1) who—

1. has died;
2. is a child,•
3. is unable to make the complaint themselves because of—

(1) physical incapacity, or

(ii) lack of capacity within the meaning of the Mental Capacity Act 2005(a), or

has requested the representative to act on their behalf.

6. Mrs B says the family are affected by the Council’s actions and has asked the Ombudsman to consider them further.
7. While it is understandable that family members are concerned about Ms C, the Council does not have a duty to inform family members about its involvement with her and cannot disclose any information about her without her consent.
8. 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 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.

9. The Ombudsman could not say Ms C lacks capacity to make decisions. Without consent from Ms C confirming she wants Mrs B to act on her behalf the Ombudsman cannot investigate her complaint.
10. The Ombudsman will not investigate Mrs B’s complaint about the way the Council has considered her complaint. Where the substantive matters do not themselves warrant investigation, the Ombudsman will not normally consider how the Council has responded to a complaint about them. That is the case here

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Final decision

11. The Ombudsman will not investigate this complaint. This is because where he is not investigating the substantive matters, he will not usually consider how a Council has considered the complaint. That is the case here.

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Investigator's decision on behalf of the Ombudsman