Summary: Ms B complained about the way the Council dealt with her request for contact with her brother, who was placed in foster care as a baby. We found fault by the Council in this matter, causing injustice to Ms B for which a remedy is recommended.

The complaint

1. The complainant, whom I shall call Ms B, complained the Council failed to deal with her request for contact with her brother, C (who has Down’s Syndrome and was fostered from birth) properly and in a timely manner.

Back to top

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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I considered all the information provided by Ms B about her complaint. I made written enquiries of the Council and took account of all the information and evidence it provided in response.
6. I have had regard to relevant legislation, and to the Ombudsman’s guidance on remedies.
7. Ms B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response before making this final decision.

Back to top

What I found

Legal and administrative information

Mental Capacity Act

8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.

Mental capacity assessment

9. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
10. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

11. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
12. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.

Best interest decision making

13. 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. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.
14. 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.

Court of Protection

15. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
16. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection can decide whether a person has capacity to make a particular decision for themselves, and it can make decisions or orders on a number of issues including welfare matters affecting people who lack capacity to make such decisions.

What happened in this case

17. Ms B’s brother, C, has Down’s Syndrome. He was taken into care and fostered from shortly after his birth, and is now an adult. In November 2019 Ms B contacted the Council requesting information on the whereabouts of her brother.
18. There is no evidence that any action was taken by the Council to act on or respond to this request in 2019. That was fault.
19. In June 2020 Ms B contacted the Council again. She wanted to know that her brother was well, given the Covid-19 pandemic, and she said that she would really like to meet him but did not know how to go about this. Ms B made two further contacts within a few days as she had received no response: she requested a call back. The Council did call Ms B back and confirmed her brother was well, and the notes show that she enquired again about contact with C for herself, her older sister, and her mother. I will return to this point later in this statement.
20. In July and August Ms B contacted the Council again as she had not received a substantive response about what was happening in respect of her request for information about contact with her brother. The Council says the allocated social worker for C at this time had been in a separate role within the relevant Learning Disability team, and C’s case should have been reallocated. The Council says this could have contributed to delays in progressing this matter. The delay, and a failure to reallocate C’s case if that was appropriate, was fault.
21. In mid-August 2020 Ms B complained to the Council. C’s case was allocated to a new social worker and the Council noted that advocacy may be required and a with a mental capacity assessment completed in respect of the decision on C meeting with his birth family. The Council replied to the complaint within the relevant timescale, and having spoken to Ms B beforehand on the telephone. It said that in terms of any request to meet with C, his views would need to be prioritised; a new social worker would complete work with C to ascertain his views about meeting his birth family, and the need for an independent advocate. The Council explained that if C was deemed to lack mental capacity to make a decision about meeting his birth family, a Best Interests decision would be made on his behalf. The Council said the social worker would be in touch with Ms B in due course.
22. In early September 2020, the social worker did contact Ms B as promised, and action was taken to refer C’s case for advocacy services.
23. In mid-October, Ms B called to ask the Council for an update, and spoke to an officer who explained again about mental capacity and Best Interest decision -making. On 26 October, Ms B again called and requested a call-back, and on 3 November she called again as she had had no response. The Council accepts that Ms B’s call had not been returned in a timely manner: the delay was fault. The Council sent Ms B an email the same day explaining that the social worker had left and there was no staff capacity within the team to allocate a new social worker at this time, but a duty social worker would be asked to follow up Ms B’s queries about the possibility of getting photographs of C and about whether an advocate had been arranged for him. Ms B chased this again on 9 November before receiving a reply from the social worker on 12 November, with the information that an advocate had been assigned for C, but photographs were still awaited. On 18 November Ms B contacted the Council again, concerned she had received no further update. Her call was returned, and an update promised for the following week.
24. Ms B escalated her complaint at the beginning of December 2020, and a team manager spoke to her on the telephone about the issues around C’s capacity for making decisions, and about Best Interest decision-making. I have not seen a record of these calls, but the Council notes that advice from a legal perspective should have been sought at an earlier point. The Council says that during the conversation at this time notes referred to Ms B herself having contact with C, rather than Ms B plus other family members, and it takes the view that this may have contributed to a lack of clarity about which family members were seeking to have this contact. The Council went on to progress the matter with a view to considering the question of contact only for Ms B and not any other family members. The Council says that misinterpretation of information could have contributed to a lack of clarity about the specific decision which needed to be considered within the mental capacity assessment process. The fact that C’s case was being managed by the social work duty team rather than an allocated social worker may have also been relevant. The lack of clarity and the delay in seeking advice from a legal perspective was fault.
25. Update calls were made to Ms B on 10 December, when she confirmed receipt of photographs, and 16 December, when apology was given for delay and the process of mental capacity assessment was further discussed.
26. On 4 January 2021, the Council issued its response to the escalated complaint, again within the relevant published timescale. It acknowledged that Ms B had been contacting it for over a year and that during this period there had been limited progress in moving the situation forward. It apologised for this and said it would be reviewed with the team. The Council set out again the process which needed to be followed in respect of mental capacity assessment and decision-making. A named social worker would be completing the necessary work, starting in January, and progressing it in a timely manner, but taking into account C’s needs and the implications of challenges imposed by the pandemic. The social worker would provide updates to Ms B during the process.
27. Actions after this do not form part of this complaint. However, for completeness the evidence shows that between January and June several steps were taken by the Council to try to progress this matter, and some further difficulties were encountered in that process. This included action necessary when the Council realised that it needed to address the question of contact with C not just for Ms B but for other family members also. The Council has now set out a plan for a pathway to complete the process of mental capacity assessment and to identify the steps which may follow. The Council has informed Ms B of the plan, and has set out the possibility that it may ultimately be necessary for the Court of Protection to determine what is in C’s Best Interests.

Analysis

28. As noted above, there were faults by the Council at various points. There were delays, only some of which may be attributed to restrictions imposed by the Covid19 pandemic, and communications with Ms B were sometimes poor.
29. It is not for the Ombudsman’s role to prejudge what the outcome will be of the due process now in train to establish whether contact may be arranged between Ms B and her brother. Neither can we say that if the process had not been affected by delay, the decision made at that time would be the same as any decision made now. However, if the Council had acted without fault it is more likely than not that a decision on contact could ultimately have been reached sooner.
30. As a result of the Council’s fault, Ms B has had to wait longer for a decision than she would otherwise have done, contributing to distress. In addition, poor communication meant she has been put to some avoidable time and trouble seeking updates and information, and in pursuing her complaint.

Back to top

Agreed action

31. In recognition of the injustice identified above, I recommended that within four weeks of the date of the decision on this complaint, the Council:

• pays Ms B £250. In making this recommendation I note than an apology has already been given; and
• identifies an appropriate member of staff to have oversight of the process set out in its plan going forward and to keep Ms B appropriately appraised of progress.

32. I further recommended that within three months of the date of the decision on this complaint the Council reviews lessons learned from this complaint and identifies, so far as possible, measures it will implement to avoid recurrence.
33. The Council has agreed to my recommendations.

Back to top

Final decision

34. I have completed my investigation on the basis set out above.

Back to top

Investigator's decision on behalf of the Ombudsman