Summary: Mrs X complains the Council is not allowing her to have unsupervised contact with her adult daughter and that it said it would apply to the Court of Protection to resolve this and it has not done so. There was no fault in the way the Council reached a best interests decision that Mrs X’s contact with her daughter should be supervised. The Council failed to approach the Court of Protection despite repeatedly saying it would do so and this was fault. The Council has agreed to write to Mrs X to apologise for the frustration this caused, confirm the contact arrangements with her daughter, review these and if Mrs X remains dissatisfied to approach the Court of Protection.

The complaint

1. Mrs X complained the Council is not allowing her to have unsupervised contact with her adult daughter Miss Y. Mrs X says this is unnecessary and unjust and is causing her significant distress. In addition, Mrs X complained the Council said it would apply to the Court of Protection regarding the contact arrangements but it did not and so the issues remain unresolved.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. If we are satisfied with a council’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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How I considered this complaint

5. I have considered the information supplied by Mrs X and have spoken to her on the telephone. I have considered the Council’s response to my enquiries.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I receive in reaching a final decision.

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What I found

The relevant law and guidance

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.
8. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
9. When assessing somebody’s capacity, the assessor needs to find out:
• 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?
10. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
11. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA).” An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf. There are two types of LPA, one for decisions around property and finance and one for decisions around health and welfare.

What happened

13. Miss Y is an adult. She has Down’s syndrome. She shares a house with another adult with disabilities and receives support from a care provider. The following is a summary of the key events. It does not reference every piece of correspondence or contact between the Council and Mrs X or her representatives.
14. In October 2018 the Council met with Miss Y’s father and sisters to discuss concerns they had raised about Mrs X’s visits with her daughter and the impact of these. Miss Y’s father and two of her sisters have LPA for Miss Y’s health and welfare and finances. The Council completed a mental capacity assessment and made a best interests decision that Mrs X should have supervised visits with Miss Y.
15. In April 2019 Mrs X’s solicitor raised concerns on her behalf about comments in the capacity assessment and best interests decision. She disputed comments that she had always had supervised contact with Miss Y and comments about her treatment of Miss Y.
16. A social worker met with Miss Y in June and July 2019 to complete a mental capacity assessment regarding Mrs X’s visits with Miss Y. This found Miss Y could communicate her decision about the visits but she did not have capacity to understand information relevant to the decision or to use and weigh up information to make it. The notes recorded Miss Y had a cognitive impairment which impacted her understanding, insight and ability to weigh up a situation. However, the notes said given time Miss Y could express her thoughts and feelings quite well. They noted Miss Y’s views which confirmed she wanted planned visits, once a month with Mrs X with a support worker in attendance.
17. The Council held a best interests meeting in July 2019. This was attended by Miss Y’s father and sisters, the care provider and social work staff. The notes recorded Mrs X and her solicitor were invited to the meeting but did not attend. The notes record Miss Y wanted to see Mrs X with a support worker present. The meeting recommended Mrs X continue to have supervised visits with Miss Y. It set out a schedule of one visit per month. Miss Y would be supported by the care provider at the visits.
18. The Council held a best interests review meeting in December 2019. It agreed the current arrangements continued to work well for Miss Y and were the best option to support Miss Y to have a positive and relaxed time with Mrs X.
19. In 2019 Mrs X complained to us that the Council was not allowing her unsupervised contact with Miss Y. We asked the Council to consider the complaint. In January 2020 the Council told us the complaint response was suspended as it was considering whether to take court action regarding contact.
20. The Council wrote to Mrs X in January 2020 setting out the dates and times arranged for visits with Miss Y. It also invited Mrs X to the next review for Miss Y scheduled for early June 2020.
21. In early March 2020 Mrs X attended a meeting with the Council, Miss Y’s father and sisters and representatives from the care provider. The Council stated the purpose of the meeting was to arrange supervised visits for Miss Y with Mrs X. At the meeting the Council reminded the attendees that the last best interests meeting concluded visits between Miss Y and Mrs X were to be supervised. The minutes noted Mrs X said the visits had gone well but she wanted to have unsupervised visits. She did not understand why visits had to be supervised and refused to discuss arranging further supervised visits, so the meeting ended.
22. Mrs X wrote to the Council following the meeting. She asked what she had done wrong to justify the unwarranted action given no court order was in place.
23. The Council responded to Mrs X. It said ‘as it appears no agreement can be reached between the Council and yourself as to how contact with your daughter should proceed, as you are aware the Council is making an application to the Court of Protection for it to determine the matter.
24. In a further letter to Mrs X in May 2020 the Council reiterated it was going to the Court of Protection.
25. Mrs X wrote to the Council in June, August and September 2020 asking to meet to discuss contact. She said she would not accept supervised visits. We asked the Council for an update. It advised us the Court of Protection application was ongoing and its position had not changed since March and May 2020.
26. During the COVID-19 pandemic, restrictions prevented supervised visits between Mrs X and her daughter. Mrs X had telephone contact with Miss Y and visits through a window.
27. In January and February 2021 Mrs X contacted us as she said she had still not received details of the Court of Protection application from the Council. In February 2021 the Council advised us ‘it was agreed that due to the lockdown situation and as arrangements for contact at the time (November 2020) seemed to be working well, that contact would continue to be reviewed. Upon restrictions lifting, however, the Council would consider whether a court application would be necessary. At this time therefore the Council have not submitted a Court of Protection application’.
28. Mrs X wrote to the Council in March and April 2021 to complain. She remained unhappy and so we have considered the complaint.
29. In its response to my enquiries the Council has confirmed it still intends to approach the Court of Protection. It says no supervised visits have taken place as it has not been instructed by Mrs X to resume these.

Findings

30. Mrs X disagreed with the Council’s mental capacity assessment and best interests’ decision of 2018. She raised her concerns through her solicitor. The Council completed a new mental capacity assessment and best interests decision following the meeting in July 2019.
31. The Ombudsman is not an appeal body. We cannot question a council’s decision if there is no evidence of fault in the way it reached the decision. The Council followed the correct process in reaching a best interests decision that Mrs X should have supervised visits with her daughter. After Mrs X raised concerns, it carried out a mental capacity assessment, took into account Miss Y’s views, those of the care provider and of those with LPA for Miss Y’s health and welfare. Mrs X was invited to the best interests meeting of July 2019 but chose not to attend. There was no fault in the way the Council reached its decision.
32. Mrs X does not agree with the Council’s decision that she should only have supervised contact with Miss Y and complained to the Council. The Council failed to respond to the complaint and this was fault. The Council said the response was suspended as it was approaching the Court of Protection for it to consider the matter. However, it did not approach the Court of Protection and has not responded to her complaint.
33. The Council wrote to Mrs X in February 2020, May and October 2020 when Mrs X continued to dispute the access arrangements and confirmed it was applying to the Court of Protection and its position had not changed. However, in February 2021 it told us it had not applied to the Court of Protection as the arrangements in place in November 2020 were working well and contact would continue to be reviewed. During November 2020 the country was in lockdown so Mrs X only had telephone contact or window visits with Miss Y.
34. The Council’s delay in approaching the Court of Protection is fault. I acknowledge the COVID-19 pandemic has impacted upon this and the Council says it was halted due to the COVID restrictions. However, throughout this time the Council repeatedly told Mrs X that it was approaching the court.
35. I cannot say what the outcome of the court’s consideration of this matter will be. Therefore, I cannot say whether the Council’s fault avoidably caused Mrs X to miss out on contact with Miss Y. Even if the court supports unsupervised visits, I cannot definitively say this would necessarily have been the outcome had the Council acted promptly.
36. However, the Council’s delay has caused Mrs X significant frustration. The Council has now confirmed it intends to contact the court. The Court of Protection is the appropriate body to resolve the issues regarding contact between Mrs X and her daughter.
37. Since March 2020, Mrs X’s ability to have any visits with her daughter has been severely restricted by the COVID-19 pandemic. Mrs X has also had her own health issues which have impacted on her ability to visit her daughter since the easing of restrictions. Mrs X maintains telephone contact with Miss Y and it is open to her X to contact the Council to resume supervised visits should she wish to.

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Agreed action

38. Within one month of the final decision the Council has agreed to write to Mrs X to apologise for the frustration caused to her by its delay in referring the matter to the Court of Protection. It should set out the current position on contact and Mrs X’s options should she disagree with these.
39. Within two months of the final decision the Council has agreed to review the contact arrangements between Mrs X and Miss Y. If Mrs X remains unhappy with these it has agreed, within three months of my final decision, to approach the Court of Protection to resolve this. It should write to Mrs X to confirm when it has done this.

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Final decision

40. I have completed my investigation. There was evidence of fault causing an injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman