Summary: We found fault in the Council’s failure to consider the complaint about the withdrawal of support from the complainant’s (Mr X) daughters (Miss C and Miss D). The Council’s fault caused injustice to Mr X and his wife (Mrs X) as they had no opportunity to have their concerns investigated. The Council agreed to apologise and to consider Mr X’s complaint.

The complaint

1. Mr X complains about the Council’s refusal to investigate his complaint about the withdrawal of support from his daughters.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I have only investigated how the Council handled the complaint raised by Mr X rather than any substantive issues of this complaint.

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How I considered this complaint

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I reviewed the Council’s ‘Adult Social Care Statutory Complaints Policy’.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal framework and relevant policies

Mental Capacity Assessments

9. The rules about mental capacity of a person aged 16 or over are set up in the Mental Capacity Act 2005. Every person 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. A 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.
13. 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.

Adult Social Care Statutory Complaints Policy

14. A complaint can be made by:
1. Any person who receives or has received services from Adult Social Care Services, or
2. A person who is affected or is likely to be affected, by the action, omission or decision of Adult Social Care Services. (Adult Social Care Statutory Complaints Policy paragraph 6.1)
15. A complaint can be made by another person – the representative – who is acting on behalf of the person mentioned above, if that person:
1. Has died
2. Is unable to make the complaint themselves due to physical incapacity, lack of mental capacity or has requested the representative act on their behalf. (Adult Social Care Statutory Complaints Policy paragraph 6.2)
16. The Responsible Officer must be satisfied that the representative is making the complaint in the best interests of the person on whose behalf the complaint is being made. If the Responsible Officer is not satisfied, they may decide not to consider the complaint further. In such situations the Responsible Officer will notify the representative in writing, stating the reason for their decision. (Adult Social Care Statutory Complaints Policy paragraph 6.3)

What happened

Background

17. Mr and Mrs X were representing their daughters Miss C and Miss D from the beginning of the Adult Social Care services involvement with them. Miss C and Miss D have complex needs and need support with daily living activities. They live in a council property joined with Mr and Mrs X’s house.
18. In July 2022 the Council carried out social care needs assessments for Miss C and Miss D. Miss C and Miss D could complete the assessment but needed support from their family and friends. Mr and Mrs X took part in the assessment as their daughters’ advocates. Mental capacity assessments did not take place. The Council said it had offered to conduct carers assessments for Mr and Mrs X but they had declined this offer.
19. For some time the Council had concerns about direct payments for the care services supplied to Miss C and Miss D and tried to resolve the difficulties by the means such as replacing direct payments with a pre-paid card. At the beginning of March 2023 the Council decided to stop direct payments with a month’s notice.
20. At the same time the Council referred Miss C and Miss D to its advocacy team to secure independent support for them for their care planning. From 2021 the Council had had some concerns about the way Mr and Mrs X managed direct payments for their daughters and offered its advocacy services for them. This matter was not progressed by Mr and Mrs X. Mr and Mrs X continued acting on behalf of their daughters and as their advocates.

Complaint

21. At the beginning of June 2023 Mr X acting also on behalf of Mrs X, Miss C and Miss D complained about the withdrawal of the direct payments for his daughters’ social care services. He also raised another complaint about the lack of carers assessments for him and Mrs X.
22. Social Worker (the Social Worker) was planning home visits to carry out Miss C’s and Miss D’s assessments in the second part of June 2023. The Council told us the Social Worker intended to include Mental Capacity assessments for bringing a complaint about the Council’s actions to be part of them.
23. At the end of June Mr X’s legal representative suggested seeking resolution of all the outstanding issues, including any assessments, through a meeting with all the parties involved.
24. At the end of July Mr X’s legal representative told the Council Mr X objected to appointing advocates for Miss C and Miss D and was not happy with carrying out assessments, including mental capacity assessments for them.
25. At the beginning of August 2023 the Council told Mr X it could not investigate his complaint as Miss C’s and Miss D’s mental capacity for raising the complaint had not been assessed. The Council said all its attempts had been unsuccessful.
26. In his response Mr X stressed that the complaint raised at the beginning of June related not only to Miss C and Miss D. He asked for a senior member of the Council’s staff to review the Council’s refusal to consider his complaint. Mr X stated he wished to avoid any further delays as intended to bring this matter to us.
27. At the end of August the Council confirmed its position regarding the need of mental capacity assessments for Miss C and Miss D before considering Mr X’s complaint.
28. In view of the difficulties and the lack of progress in resolving them, the Council filed an application in the Court of Protection for an order allowing the Council to complete care act assessments, mental capacity assessments and legitimising involvement of the independent advocates for Miss C and Miss D.

The Council’s response to my enquiries

29. The Council’s view is that Mr X was not affected by the actions of the Adult Social Care team in relation to the stopping of direct payments for Miss C’s and Miss D’s support. The Council said before stopping the payments it had offered alternative care arrangements for Mr X’s daughters, which were rejected.
30. The Council said that in line with the data protection legislation to fully process the complaint it would need consent from Miss C and Miss D to disclose information from their social care records to their father, unless they would be considered lacking mental capacity to consent.
31. The Council did not refuse to respond to any other complaints due to not obtaining a complainant’s consent between January 2023 and January 2024.

Analysis

32. Mr X brought his complaint about the Council stopping direct payments on his own behalf, as well as his wife’s and his daughter’s. I accept the Council tried to obtain Mental Capacity assessments for Miss C and Miss D to find out whether they had capacity to give their consent for the complaint. This is what we would expect in the circumstances as such actions are required by the law and the Council’s policy.
33. On the basis of the evidence I found the Council made reasonable attempts to carry out Mental Capacity assessments for Miss C and Miss D by offering to visit and participate in meetings. Mr X considers the Council failed as it did not conduct the assessment in the way we did in these proceedings, namely through a video call with Miss C and Miss D. It is not for us, however, to tell the Council how it should discharge its functions. We would not criticise the Council for choosing different methods of carrying out Mental Capacity assessments.
34. I did find, however, fault in the Council’s refusal to consider Mr and Mrs X’s complaint as it was also brought by them as the individuals affected by the Council’s decision to stop direct payments.
35. All the evidence I have seen shows Mr and Mrs X’s involvement in the management and oversight of their daughters’ care. They managed direct payments, coordinated care services and provided their own support for Miss C and Miss D. Any changes to Miss C’s and Miss D’s support arrangements by withdrawing direct payments or offering alternative care arrangements by the Council would have had an impact on Mr and Mrs X, who had managed their daughters’ direct payments until March 2023.Even if the Council’s decision to stop direct payments for Miss C and Miss D was legitimate, which could only be decided through carrying out an investigation into the process, an impact of this decision on Mr and Mrs X’s cannot be questioned. The Council should have, therefore, considered Mr and Mrs X’s complaint even though it could not carry out Miss C’s and Miss D’s Mental Capacity assessments.
36. The Council’s concerns about the data protection legislation do not justify its refusal to deal with Mr and Mrs X’s complaint. This is because at least until March 2023 Mr and Mrs X were representing Miss C and Miss D before the Council. They acted as their daughters’ advocates, supported their daughters in their care needs assessments and managed direct payments for their care. They had access to all the documents relating to Miss C’s and Miss D’s social care services. Although from 2021 the Council had had some concerns about the way Mr and Mrs X managed direct payments for their daughters and offered its advocacy services for them, Mr and Mrs X continued acting on behalf of their daughters and as their advocates.
37. As Mr and Mrs X’s complaint was about stopping direct payments in March 2023 any documents relating to the investigation would have come from the time period before March 2023. They were accessible to Mr and Mrs X as their daughters’ advocates.
38. The Council’s refusal to consider Mr and Mrs X’s complaint caused them injustice. They did not have an opportunity for an independent Council’s service to investigate the matters which had a significant impact on their daughter and on them.

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Agreed action

39. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following:
• Send a written apology to Mr and Mrs X;
• Consider Mr X’s complaint about the ending of direct payments for his daughters’ care service together with the complaint Mr X raised with the Council in March 2024 about the impact of the Council’s decision on him and his wife.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I uphold this complaint. I found fault in the Council’s refusal to consider Mr X’s complaint which caused him and Mrs X injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman