Summary: Mr X complained on his own, and on Ms Y’s behalf about the way the Council has dealt with matters relating to her supported living placement. The Ombudsman has discontinued the investigation into the complaint. This is because, while issues about Ms Y’s capacity are being considered by the Court, we are unable to find Mr X has her consent or authority to bring her complaint to us and we cannot achieve a worthwhile outcome for Mr X.

The complaint

1. Mr X complained about matters relating to his daughter, Ms Y’s supported living placement. He has brought the complaint on his own and Ms Y‘s behalf. Mr X says:

• The care provider has exercised coercive control over Ms Y, alienating her from him and the family.
• The care provider and the Council have misused the Mental Capacity Act to maintain control over Ms Y.
• The care provider has failed to provide proper care to Ms Y
• There are issues regarding Ms Y’s rental agreement for the accommodation at the supported placement.
• The care provider has failed to provide invoices and receipts for services provided to Ms Y.
• The care provider continued to take cash payments directly from Ms Y, despite being instructed not to so by himself as Ms Y’s attorney.
• The Council has refused to discuss alternative accommodation for Ms Y.

2. He also complained about the way the Council and the care provider have dealt with him and his family in response to concerns raised about Ms Y’s care and her finances. And Mr X says they have prevented proper contact between Ms Y and the family.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We may investigate complaints made on behalf of someone else if they have given their consent. If they are not able to give their consent, we can consider whether the person bringing the complaint is a ‘suitable representative’. (Local Government Act 1974, section 26A(1) and (2), as amended)
6. 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 may decide not to continue with an investigation if we decide: we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

7. I spoke to Mr X and considered all the information he and the Council have provided about the complaint.
8. I invited Mr X and the Council to comment on a draft version of this decision. I considered their comments before making my final decision.

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What I found

Legal and administrative background

Mental capacity

9. One of the key principles of the Mental Capacity Act 2005 is that every adult has a right to make their own decisions and must be assumed to have capacity to make them unless it is proved otherwise. The Mental Capacity Act Code of Practice says it is important to start from an assumption of capacity.

The core principles of the Mental Capacity Act are that:

• a decision maker must assume a person has capacity to make their own decisions, unless it is established that s/he lacks capacity;
• All practicable steps must be taken to help a person make a decision, before a decision is taken they lack capacity;
• a person should not be treated as unable to make a decision merely because they make an unwise decision;
• any act done, or decision made, for a person must be done, or made, in their best interests;
• a decision maker must consider whether the purpose of an action can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Power of attorney

10. The Mental Capacity Act also introduced lasting power of attorneys (LPA). A LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves

What happened

Background

11. Ms Y has been living at her supported placement for a number of years. The Council commissions and pays for the care provided by her care provider. The Council says any additional services provided to Ms Y by the care provider are arranged and paid for privately.
12. Ms Y appointed Mr X and two other family members as her attorneys under a LPA to make decisions, jointly and severally, about her property and financial affairs. This authorised her attorneys to make decisions, with her agreement, from the date of registration as well as when she no longer has mental capacity.
13. Ms Y also appointed Mr X and two other family members as her attorneys under a LPA to make decisions, jointly and severally, about her health and welfare if she no longer has the capacity to make these decisions, provided the LPA has been registered.
14. Both LPAs were registered by the Office of the Public Guardian on 1 June 2016.
15. Mr X complained to the Council in September 2020 about a number of issues relating to Ms Y’s care and finances. The Council responded to Mr X’s complaint in October 2020.
16. Mr Y was not satisfied with the response and brought the complaint to us in November 2020.

Current position

17. In its further response to Mr X of 22 December 2020 the Council said:

• The LPAs for Health and Welfare and Finances are limited in scope while Ms Y has capacity in these areas.
• The Council’s capacity assessments have shown Ms Y can make important decisions in relation to her own health and welfare. She has also demonstrated she can make decisions in relation to the management of her information, including her finances.
• Ms Y is clear she has no complaints regarding the Council and does not support the complaints Mr Y has made on her behalf.

18. Mr X and the Council agreed to arrange an independent assessment of Ms Y’s capacity to make decisions, including those about her health, welfare and finances. This was completed in April 2021.
19. I understand the Council does not agree with the findings of the independent assessment. Mr X has made an application to the Court of Protection. I have not been provided with details of the proceedings but understand the Court has been asked to determine Ms Y’s capacity to make decisions about her finances as well as her health and welfare.

Analysis – should we continue with the investigation

20. The law says, where a complaint is made to us on behalf of another person, their representative must be authorised in writing to do so. And if a person is unable to authorise a representative to act on their behalf, the complaint may be made by a person who appears suitable to us to represent them.
21. Here there is a dispute between the Council and Mr X about Ms Y’s capacity to make decisions. I consider this is relevant to the question of whether Ms Y has capacity to consent to Mr X bringing a complaint to us on her behalf and whether he has authority under the LPA to complain on her behalf about financial issues. The Court of the Protection has been asked to determine this dispute.
22. On the basis of the evidence currently available, my view is I am unable to investigate the complaint brought by Mr X on Ms Y’s behalf, while the dispute about her capacity to make decisions, including about a complaint to us, and her finances - relevant to Mr X’s authority to complain to us as her attorney - is being considered by the Court.
23. And, in my view, I cannot undertake or achieve any meaningful investigation or outcome of Mr X’s complaint the Council has limited his and the family’s contact with Ms Y, and about its response to their concerns, until the issue of Ms Y’s capacity to make decisions has been determined by the Court.

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Final decision

24. I have discontinued my investigation. This is because, while the issues are still being considered by the Court, I am not able to find Mr X has Ms Y’s consent, or authority, to ask us to investigate a complaint on her behalf and we could not achieve a worthwhile outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman