• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Ms B said the Council refused to accept her complaint about allegations a care provider made about her despite her making it properly and in good time. She also said the Council failed to involve her in her brother’s care and support arrangements. We found the Council failed to accept and investigate Ms B’s complaint in line with its statutory duties. There was no fault in the way the Council involves Ms B in her brother’s care and support arrangements. The Council has agreed to our recommendations and will apologise to Ms B, make an acknowledgement payment, and remind its officers of the importance of effective complaint handling.

The complaint

1. The complainant, who I shall refer to as Ms B, says the Council failed to accept her complaint despite her making it properly and in good time. She alleges the Council said she coerced her brother, Mr D, a vulnerable adult, into agreeing to go on a family holiday. She complains the Council said she had manipulated Mr D into signing an authorisation form against his will when she visited him in his supported housing placement. Ms B said when she complained the Council took an accusatory tone, told her she had not made her complaint properly and did not take her complaint seriously.
2. She also complains the Council and the provider it commissions failed to involve her in Mr D’s care and support arrangements, provide copies of care plans, and change when they say he has capacity to make specific decisions to deny her requests to be involved.
3. To put things right Ms B wants the Council to apologise for not dealing with her complaint. She would also like to be included in her brother’s care and support arrangements, be provided with a copy of his care plan, and have him spend time with her at home in line with his wishes.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)

Back to top

How I considered this complaint

6. I have considered information provided by Ms B and the Council. I have also considered the law and guidance relevant to this complaint. Ms B and the Council were given an opportunity to respond to a draft of this decision.

Back to top

What I found

Law and relevant guidance

7. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:
   • how it has considered the complaint; and
   • what conclusions it has reached about the complaint, including any matters which may need remedial action; and
   • whether the responsible body is satisfied it has taken or will take necessary action; and
   • details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
8. Where a complaint concerns more than one responsible body, they must co-operate in handling the complaint. This includes duties to settle who will lead the process; share relevant information; and provide the complainant with a coordinated response. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
9. The Council has a Corporate Complaints Policy in place. This defines a complaint as, ‘Any expression of dissatisfaction with our staff or the services that we deliver (including partners and contractors, acting on our behalf).’
10. 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. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
11. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
    • because he or she makes 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.

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.

12. 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 done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
13. If there is a conflict about what is in a person’s best interests, and all attempts to resolve the dispute have failed, the Court of Protection might be asked to decide what is in the person’s best interests.
14. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
15. The Mental Capacity Act (MCA) 2005 states that once a standard authorisation under the DoLS has been approved the supervisory body must appoint a relevant person’s representative (RPR) as soon as possible and practical to represent the person who has been deprived of their liberty. The role of the RPR is to maintain contact with the relevant person, and to represent and support the relevant person in all matters relating to the deprivation of liberty safeguards.  Including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection.

Background

16. Ms B’s brother, Mr D, is an adult with learning difficulties and some communication problems. He has lived in a supported housing placement since 2018. Ms B was involved in the decision to move Mr D from the family home to the placement. Other family members have also been involved in decisions around Mr D’s care and support arrangements. Ms B visits her brother regularly and the Council said she has been asked to comment on his assessments and reviews.
17. Mr D is subject to the DoLS and has an appointed RPR in place. The Council arranged and funds his care and support package.

What happened

18. In June 2019, the Council received information from Mr D’s family to say they were planning to take him abroad on holiday to celebrate a family birthday. This is confirmed in an email Ms B sent to the supported housing placement detailing the holiday was scheduled for September. A Council officer, Officer P, emailed Ms B to say Mr D had told his RPR he did not want to go on holiday. Officer P asked Ms B not to book the holiday.
19. Ms B replied to the email and said this was not the case and Mr D and her mother would be upset by the Council’s interference. Ms B said she would complain to Officer P’s seniors and her member of parliament (MP).
20. In mid-September Ms B received an email from Officer P in response to a report from staff at the supported housing placement. In summary the email said:
    • Ms B had visited Mr D in the placement, and he was made to sign a piece of paper and his calendar was marked with a date he said was a holiday.
    • Mr D was very distressed that he was made to sign a piece of paper saying he wanted to go on holiday. He was very clear he did not want to go on holiday and did not want to go on an aeroplane or away.
    • Mr D was under a DOLS authorised by the Court of Protection that he resides at the placement.
    • The Council had alerted the RPR who was concerned Mr D was being pressured to go on a holiday he did not want to go on. The RPR was also concerned Mr D was being coerced and forced to sign a paper he does not agree with.
21. Officer P asked Ms B not to make any arrangements for Mr D to join her on holiday as this was against his wishes. Officer P said unless Ms B gave assurances that she would not pursue the holiday topic with Mr D again then the Council would have no choice but to follow its safeguarding procedures.
22. Ms B replied to the email two days later. She sent the email to Officer P and the manager of the supported housing placement. In summary Ms B said:
    • she was stunned by the false accusations made against her as she loved her brother and had his best interests at heart.
    • she had initiated Mr D’s move from the family home to the placement and this was a positive step towards his independence and self-development.
    • she was extremely disappointed by the unfounded allegations which she felt needed to be addressed urgently.
    • she had not discussed the holiday with Mr D on her visit and he had already told her months ago he did not want to go on holiday.
    • the family had already been on the holiday the week before her visit which was proof that she could not have coerced her brother as alleged.
    • she had not asked her brother to sign a piece of paper. A personal letter in her bag had fallen out when she was taking out a bag of fruit for her brother. She had put it back in her bag when she realised it had fallen out.
    • she did not circle the holiday date on the calendar. She had marked her upcoming birthday and that of her twin on the calendar to remind her brother of the date as well as verbally telling him.
23. Ms B asked for a meeting to discuss what she referred to as “the distrust and falsehoods”. She also raised concerns about Mr D’s care and support relating to speech therapy. She said she welcomed the opportunity to have a meeting to discuss Mr D's care and support plan. She asked for an apology.
24. Two days later Ms B forwarded the email she had sent to Officer P and the placement manager to the Council’s adult social complaints team. She asked the Council to consider it as a formal complaint and investigate her concerns.
25. The Council replied to the email and said before considering Ms B’s complaint it needed to clarify some aspects. It said it sent the email to her as its team supporting Mr D responded to information received from the placement manager who in turn was acting on information received from Mr D. Therefore, it was unclear why Ms B referred to “accusations”. The Council said if Ms B felt the placement manager had misrepresented what her brother had said she could ask the provider to address that directly and the Council would record the responses. The Council said it would consider having a meeting with her, the team, Mr D and his RPR but it could only happen with Mr D’s permission.
26. Ms B replied to the email and asked the Council to address all the points in her complaint before responding to her. She quoted the following points:
    • “Defamation of my Character.
    • Accused of coercing my brother.
    • [Mr D] allegedly signing a letter.
    • Accused of circling a date on calendar to coerce [Mr D].
    • The lack of integrity and mistrust of both [Officer P] and [placement manager] in their inappropriate behaviour and actions towards me, that has made me escalate this complaint is unacceptable.”
27. The Council replied and said Ms B had not given the information needed for it to accept her complaint. It said it was not prepared to put Mr D through a complaint investigation unnecessarily. Ms B said she had given the Council all the information necessary to investigate her complaint and she was not happy that it had not taken her complaint seriously. She said she would escalate her complaint for a full investigation.
28. A representative from the MP’s office also contacted the Council. The MP’s office said Ms B had a right of complaint if she had concerns about her brother’s care and support. The MP’s office asked the Council to clarify its complaints procedure and consider meeting with Ms B to discuss her concerns.
29. The Council replied to the MP’s office and in summary said:
    • it did not have Mr D’s consent to discuss any aspect of his life with the MP’s office.
    • Ms B did not have an automatic right of complaint and the Council could decide not to take a complaint if it felt it was not being made in the best interests of its client.
    • a decision about Ms B was made because the RPR was concerned about Mr D’s welfare following Ms B’s visit.
30. Ms B then complained to the Ombudsman.

Findings

Ms B’s complaint to the Council

31. Ms B’s complaint to the Council involved two separate issues. Firstly, she raised concerns about the allegations made her about her following her visit to her brother, Mr D. When she did not receive a satisfactory response from the officers involved, she asked the Council to consider a complaint.
32. Ms B also complained about not being involved in her brother’s care arrangements including her concerns about his access to speech therapy.
33. The Council said it did not accept the complaint from Ms B because it was not in Mr D’s best interests to pursue the complaint. Ms B had detailed how the email from Officer P had made her feel and why she felt it was wrong to have received the email which proposed further action if she did not comply. Ms B was complaining in her own right about how the actions of the Council affected her. She was not complaining on behalf of her brother.
34. The Council could have investigated the complaint without the involvement of
    Mr D. Therefore, it did not need to consider Mr D’s best interests for issues Ms B had raised which directly related to her. For example, it could have spoken to
    Ms B to get her version of events, spoken to the staff involved and verified any information raised by Ms B in the email such as the date of her birthday against the date on the calendar and the date of the holiday. It could have then considered whether the allegations were dealt with in an open-minded and impartial way.
35. Ms B said she had already accepted that her brother did not want to go on holiday and said she had already been on holiday before her visit to Mr D. The Council has not provided evidence to show that Ms B or any other family member had contact with it about the holiday since July 2019. This leaves a two-month gap between the last contact and Mrs B’s visit. Ms B should have been able to reasonably expect the Council to have listened to her version of events before it told her it would consider further action if it did not have her assurances.
36. In response to the Ombudsman the Council said, it had no reason not to accept the provider’s report that Mr D was distressed after the visit from Ms B and he had perceived the conversation to be about a holiday. The Council said it acted on the information received and a request from Mr D’s RPR. The Council also said it advised Ms B to pursue the complaint with the provider in the first instance.
37. Ms complained to the Council about the actions of one of its officers and it was therefore not appropriate for the Council to have told Ms B to complain to the provider. Furthermore, the Council commissioned the placement, so the provider was acting on behalf of the Council.
38. The Council was under a duty to consider the complaint in line with Regulation 5 of the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. The Council should have accepted the complaint and put it through its complaints process. The Council did not do this and is at fault.
39. As a result of not considering Ms B’s complaint in line with the regulations she lost the opportunity to have her voice heard and challenge the allegations. People have the right to treated fairly when allegations are made about them. That includes having the opportunity to challenge allegations before crucial decisions are made. Ms B was upset and angry when she felt the Council made judgements about her. Ms B was willing to meet with the Council to discuss the allegations further. The Council did not do this so she was put to avoidable time and trouble in pursuing her complaint.

How the Council involves Ms B in Mr D’s care and support arrangements

40. It is likely Mr D lacks capacity to make some decisions and so decisions are made in his best interests. The Council has assessed his capacity as fluctuating and some capacity decisions are considered at the time they need to be made. A formal capacity assessment may not be necessary where the decision is not complex. Therefore, it is unlikely the Council or the provider picks and chooses when they say Mr D has capacity.
41. Ms B says she wants to be involved in decisions about her brother’s care and support arrangements. There is no evidence to suggest the Council deliberately prevents this from happening. The Council has provided evidence to show other family members are also involved in Mr D’s care and support planning.
42. Ms B also said she wants the Council or the care provider to share a copy of her brother’s care plan with her. This is not something the Ombudsman can recommend as the Council has to consider Mr D’s capacity. In doing so it supports Mr D to decide who he wants to share his personal information with.
43. Mr D has a voice and is supported by his RPR who represents his views.
    Mr D can be supported to say who he wants involved in his care and support arrangements and to what extent he wants others, such as family, involved. It is up to the RPR to work with Mr D and then represent his choices. The RPR may choose not to involve others in discussions with the relevant person to maintain Mr D’s independence
44. The Council said the RPR is willing to have contact with Ms B and other family members. Therefore, Ms B can speak to the RPR about her concerns as the RPR is better placed to act in Mr D’s best interests if necessary.
45. In response to the Ombudsman’s enquiry the Council said it supports Ms B’s wish to have contact with her brother. This is evident because Ms B visits her brother regularly. It is arranging a best interests meeting to establish Mr D’s wishes about who he wants involved in his care and support arrangements. This is good practice. I do not find fault in the way the Council involves Ms B and other family members in Mr D’s care and support arrangements.

Conclusion

46. I find fault in the way the Council refused to accept and investigate Ms B’s complaint. This is likely to have caused her avoidable time and trouble to pursue her complaint as well as upset when she was denied a fair opportunity to respond to allegations made about her.
47. I do not find fault in the way the Council determines whether Mr D has capacity to make decisions or how it involves Ms B in her brother’s care and support arrangements. It is up to Ms B and other family members to work positively with the Council and the provider it commissions to ensure decisions are made in
    Mr D's best interests when necessary.

Agreed action

48. Within four weeks of the Ombudsman’s final decision the Council has agreed to:
    • write to Ms B to apologise for the loss of opportunity to have her complaint investigated fairly. It will also apologise for the upset she experienced when she felt the Council made judgements about her before listening to her version of events;
    • pay Ms B £250 to acknowledge the injustice caused and the avoidable time and trouble in pursuing her complaint;
    • consider including Ms B in the best interests decision about who her brother wants involved in his care and support arrangements and write to her to confirm the outcome of the best interests meeting; and
    • remind its officers of the importance of effective complaint handling procedures to comply with statutory duties and consider whether any training is necessary.

Back to top

Final decision

49. The Council has agreed to the Ombudsman’s recommendations. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page