Summary: The Ombudsman will not investigate how the Council considered Mr B’s complaint about facilitating contact between him and his son, Mr C. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation. The Ombudsman will not investigate Mr B’s complaint about the Council’s actions regarding Mr C’s care. This is because Mr B does not have consent from Mr C to complain to the Ombudsman on his behalf. The Ombudsman will not investigate the time it took the Council to respond to his concerns. This is because when he is not investigating the substantive matter he will not usually consider how the Council handled the complaint process. That is the case here.

The complaint

1. Mr B complained to the Council in August that is was not facilitating contact between him and his son, Mr C, who lives in a care home. Mr B says because of Mr C’s learning difficulties he has refused to see him for the past four years. Mr B says the Council should undertake a new capacity assessment, facilitate family contact and update him on Mr C’s care. Mr B says he is unhappy with the way the Council handled his complaint. He says he chased up a response in October and although was promised a call back from a Manager did not receive it. Mr B says the Council did not respond to his complaints in a timely way and did not follow the statutory process for dealing with complaints.

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The Ombudsman’s role and powers

2. 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)
3. 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, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

4. I considered the information and documentation Mr B provided. I sent Mr B a copy of my draft decision and considered his comments on it.

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What I found

5. Mr B contacted the Council about Mr C and asked it to facilitate a meeting with him and family members.
6. The Council says Mr C has not consented to Mr B having any information about him and is aware of the conflict between them. It explained it cannot provide any information without the agreement of the person receiving the care and cannot consider a complaint from Mr B unless Mr C has given his consent. Mr B says the Council should undertake a further capacity assessment and facilitate family contact.
7. The Council is not under a duty to facilitate Mr B’s access to Mr C who it says has capacity to make his own decisions. There is no evidence of administrative fault regarding the Council’s actions warranting an Ombudsman investigation.
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 Mr C lacks capacity to make decisions. Without consent from Mr C confirming he wants Mr B to act on his behalf the Ombudsman will not investigate Mr B’s complaint.
10. If Mr B disputes Mr C has capacity to make decisions 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

11. The Ombudsman will not investigate Mr B’s complaint about the way the Council has considered his complaints. 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

12. The Ombudsman will not investigate this complaint. This is because there is not enough evidence of fault with the Council’s actions and, where he is not investigating the substantive matter he will not usually consider how the Council handled the complaint process.

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Investigator's decision on behalf of the Ombudsman