Summary: Mrs X complained about the way the Council responded to her concerns regarding contact with her adult son. The Council was not at fault.

The complaint

1. Mrs X complained:
• she has been denied contact with her adult son, Mr Y, for over six years,
• she received a threatening and distressing letter from the Council following her visiting her son’s address and
• the Council has refused to share information about the mental capacity assessments completed on her son. She disagrees that he has mental capacity.
2. Mrs X says this has affected her mental health and caused her anxiety.

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The Ombudsman’s role and powers

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’. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If we are satisfied with an organisation’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)

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What I have and have not investigated

6. Mrs X has complained about the lack of contact with her son and issues related to this dating back to 2018. As set out at paragraph 4, we cannot investigate late complaints unless there are good reasons. These issues happened too long ago for me to investigate now, and it was open to Mrs X to complain to us at the time. In addition, some of the issues took place in a council area outside England and we do not have the power to look at the actions of that authority.

How I considered this complaint

7. I have considered the information provided by Mrs X in her complaints to the Council in 2022. I have considered some initial information provided by the Council.
8. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Mental capacity assessments

9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

10. 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.
11. 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 the following:

• 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?

12. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

What happened

13. Mrs X’s adult son, Mr Y, has Downs Syndrome. He lives in supported accommodation and has not had contact with his mother for several years.
14. In May 2022 Mr Y’s allocated worker wrote to Mrs X after she visited Mr Y’s property earlier in the year to drop off a gift. The letter stated Mr Y had found the visit highly distressing. The letter said Mr Y had requested that the worker write to Mrs X to inform her that he wished to have no contact. The letter explained Mr Y may decide in future that postal contact was acceptable and he would reach out when he felt comfortable to do so. The letter added that Mr Y’s ‘wishes have been recorded so it is clear to all support staff, with a plan of action that includes contacting the police should you visit his home address again’.
15. The allocated worker explained the decision had not been taken lightly. They had followed the principles of the Mental Capacity Act and had no concerns about Mr Y’s capacity to make the decision.
16. Due to Mrs X raising repeated concerns that she was not able to speak to Mr Y, in July 2022 the Council carried out a mental capacity assessment. It concluded Mr Y had capacity to make the decision that he did not want contact with Mrs X.
17. In August 2022 Council officers met with Mrs X, who was supported by two friends, to discuss her concerns about contact with Mr Y. At the meeting Mrs X raised concerns about how the mental capacity assessment regarding the decision to have no contact with Mrs X was conducted. The Council explained this was completed by a qualified social worker. It explained it could not share mental capacity assessments or other information with her as Mr Y had not given his consent and did not wish to have contact with her at that time. Mrs X asked to be kept updated about Mr Y’s health. The Council advised Mr Y would be supported with any medical appointments but it could not disclose information about this without his permission.
18. Mrs X also referred to past safeguarding allegations and the Council explained it had a duty to investigate such allegations.
19. Mrs X asked how she could make a formal complaint and the Council provided her with details of the process.
20. In September 2022 Mrs X complained to the Council. The issues she raised included concerns about the letter she received in May 2022. She asked why she had not received copies of reports and about getting an independent mental capacity assessment. The Council responded in October 2022. It advised it would not take her complaint any further as it did not have consent to share information with her. It said the issues were inextricably linked with the disclosure of information and would require Mr Y’s consent.
21. Mrs X wrote to the Council in late November 2022. She disagreed with its decision as she considered the concerns she raised were about the Council’s treatment of her and did not need Mr Y’s consent. The Council reiterated its previous response. Mrs X remained unhappy and complained to us.

Findings

22. Mrs X wishes to have contact with her son. Mr Y’s allocated worker wrote to Mrs X setting out Mr Y’s views that he did not wish to have contact with her. The letter also set out that the police would be contacted if she turned up at Mr Y’s property due to the level of distress this caused Mr Y previously. Mrs X was upset by this but given Mr Y did not wish to have contact and any contact caused him distress, this letter was not fault.
23. When Mrs X continued to raise concerns the Council carried out a mental capacity assessment regarding the specific issue of contact with Mrs X. I have seen this and there is no evidence of fault in the way it was carried out. Mrs X strongly disagrees with this decision but as there was no fault in the way the Council reached the decision I cannot question it. The Council also met with Mrs X to discuss her concerns. The Council was not at fault.
24. Mrs X asked to be kept updated regarding Mr Y’s health. Mrs X has no authority to see or receive health or other information without her son’s permission. The Council was not at fault.
25. Mrs X then submitted a complaint but at the crux of her complaint is the issue of contact with her son. The Council explained the issues she raised were inextricably linked with disclosure of information. The Council was not at fault.

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Final decision

26. I have completed my investigation. There is no evidence of fault in the way the Council addressed Mrs X’s concerns about contact with her son.

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Investigator's decision on behalf of the Ombudsman