Summary: We will not investigate this complaint about the Council’s decision that Mr X’s relative has capacity to make decisions about their welfare and finances. This is because Mr X can take the matter to court and it would be reasonable to expect him to do so.

The complaint

1. Mr X complains the Council has said his relative has capacity to make decisions about her finances and welfare even though she was found to lack capacity whilst living in a different country. Mr X says the Council’s decision is preventing the family from managing his relative’s affairs and from seeing her in the care home where she is living.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. We are unlikely to conclude that a mental capacity assessment has been affected by fault just because someone was adjudged to lack capacity whilst living in another country. Differences in legislation, medical regulation and other matters mean it is entirely possible for professionals from two different countries to reach different decisions about the needs of the same person.
8. In any case, the Court of Protection is best placed to reach a decision on a person’s mental capacity where there is a dispute about the outcome of an assessment carried out under the Mental Capacity Act 2005.
9. There is no reason why Mr X or another family member could not bring this matter before the Court of Protection if they disagree with the Council or care home’s assessment of the relative’s capacity to make decisions about her welfare or finances.

Back to top

Final decision

10. We will not investigate Mr X’s complaint because he and his family have a right to take this matter to court and it would be reasonable to expect them to do so.

Back to top

Investigator's decision on behalf of the Ombudsman