Summary: We will not investigate Mrs B’s complaint that the Council has caused a rift between her and her mother, Mrs C. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.

The complaint

1. Mrs B complained the Council failed to involve her with her mother’s, Mrs C’s discharge from hospital and care planning and says the Council lacked empathy when dealing with her. Mrs B says the Council has caused the rift between her and Mrs C and should acknowledge the mistakes it made and endeavour to restore her relationship with Mrs C.

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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
• 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

4. I considered the information and documentation Mrs B and the Council provided. I sent Mrs B a copy of my draft decision and considered her comments on it. I discussed the concerns with Mr and Mrs B.

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What I found

5. Mrs B complained the Council caused the rift between her and her mother and was concerned she did not know of Mrs C’s hospital admission. Mrs B says she was not informed or involved in Mrs C’s discharge planning to a care home. Mrs B says she provided Mrs C with care and support for 20 years until the Council became involved and since then has had no contact with Mrs C.
6. The Council says Mrs C has capacity and has given the Council permission to share specific information about her with Mrs B. This does not include information about planning for her discharge from hospital. The Council says it will continue to review the situation and let Mrs B know if Mrs C decides she wants information passed on to her.
7. Mrs B says she wants written evidence about the way the Council has determined Mrs C’s capacity.
8. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that s/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.

9. While we can understand the upset and frustration Mrs B has incurred trying to support Mrs C, we could not say Mrs C lacks capacity to make decisions about contact and sharing her personal data. Without consent from Mrs C confirming she wants Mrs B to act on her behalf we will not investigate her complaint that she should have information about Mrs C or that the Council has failed to facilitate the relationship. The Council has a duty of care to Mrs C and cannot provide Mrs B with information about her without her consent.
10. If Mrs B disputes Mrs C has capacity to make decisions about her care needs, she can ask the Court of Protection to consider her views. Information about the Court of Protection can be found on the website below.

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

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Final decision

11. We will not investigate this complaint. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman