Summary: We will not investigate this complaint about the Council’s best interest decision under the Mental Capacity Act 2005, and its refusal to explain its reasons for that decision. The Court of Protection is best placed to consider that complaint.

The complaint

1. Ms B says the Council will not explain the reasons she cannot see her mother, Ms C. Ms B is devastated not to see her mother, and not know why, and worries about not seeing her before she dies.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 do not start or may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

5. Ms C lives in a residential care home. Ms B has not been allowed to visit her mother for several months.
6. Under the Mental Capacity Act 2005 if someone cannot make a decision for themselves, a decision maker will decide in the person’s best interests.
7. The Council has made a best interest decision for Ms C not to see Ms B. The Council has not explained to Ms B the reasons for this decision, and says it does not have permission to share that information with Ms B.
8. It is understandably upsetting for Ms B not to see her mother, and for no-one to explain the reasons.
9. The Information Commissioner’s Office (ICO) is an independent body that uphold information rights. The ICO is best placed to consider if the Council has properly responded to Ms B’s request for her personal information.
10. The Council says because Ms B disputes the best interest decision it has made for Ms C, it has applied to the Court of Protection. This is the correct action to challenge the decision. The Court will review the process the Council followed to decide Ms B cannot visit Ms C, decide if the decision stands, and make a different decision if necessary.

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Final decision

11. We will not investigate Ms B’s complaint because there is another body better placed to consider this complaint. The Council has made an application to the Court of Protection, which is the correct way to challenge the best interest decision. The Information Commissioner’s Office is best placed to consider if there is information the Council should share with Ms B, that might also be covered in the Court proceedings.

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Investigator's decision on behalf of the Ombudsman