Summary: The complaint is made by a representative, with a lasting power or attorney, for the person who the complaint is about. The Ombudsman’s view is there is doubt about whether the representative is a suitable person to make the complaint. So we have discontinued our investigation.

The complaint

1. The complainant, whom I shall refer to as Mr D, complains on behalf of his uncle (Mr E). Mr D complains:
• the Council’s social worker failed to carry out her duties properly; and
• the Council failed to respond appropriately to concerns about a care provider and safeguarding alerts.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We may investigate complaints made on behalf of someone else if they have given their consent. If they are not able to give their consent, we can consider whether the person bringing the complaint is a ‘suitable representative’. (Local Government Act 1974, section 26A(1) and (2), as amended)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

5. The information I have seen includes the documents Mr D supplied with his complaint and the Council’s responses under its complaints procedure. The Council has sent us some of its files around its safeguarding investigation. And Mr D has copied me into emails with the Council.
6. I sent my draft decision to Mr D and the Council and invited their comments.

Back to top

What I found

Legal and administrative background

Mental capacity

7. One of the key principles of the Mental Capacity Act 2005 is that every adult has a right to make their own decisions and must be assumed to have capacity to make them unless it is proved otherwise. The Mental Capacity Act Code of Practice says it is important to start from an assumption of capacity.

The core principles of the Mental Capacity Act are that:

• a decision maker must assume a person has capacity to make their own decisions, unless it is established that s/he lacks capacity;
• All practicable steps must be taken to help a person make a decision, before a decision is taken they lack capacity;
• a person should not be treated as unable to make a decision merely because they make an unwise decision;
• any act done, or decision made, for a person must be done, or made, in their best interests;
• a decision maker must consider whether the purpose of an action can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Power of attorney

8. The Mental Capacity Act also introduced lasting power of attorneys (LPA). A 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

What happened

9. Mr E funds his own care provision and was receiving home care services from a provider.
10. In August October 2019 the Office of the Public Guardian granted Mr D a lasting power of attorney (LPA) for Mr E’s health and welfare. That Office has also granted another of Mr E’s relatives (Mr F) the same sort of LPA.
11. Since mid-2019 the Council has investigated four safeguarding referrals about Mr E. These have been about the cause of injuries, reports of shouting and a care provider’s care. Mr D has reported some of these safeguarding concerns to the Council.
12. In November the Council wrote to Mr D and Mr F. It noted its view was Mr E had the mental capacity to make his own decisions. It suggested Mr D and Mr F could consider mediation to resolve their differences about Mr E’s care provision. It advised it was neutral between them. But if they could not agree, it might ask the Court of Protection to withdraw the LPAs, so that it could take over.
13. Mr D complained to the Council about his concerns. After completing the Council’s complaints procedure, he complained to the Ombudsman. While we were waiting to allocate the complaint, we wrote to the Council. It sent us some information about its safeguarding investigations, its complaint responses and its concerns about the conflict between Mr E’s LPAs. Mr D has also copied us into emails with the Council, which detail continuing disputes between him, the Council and Mr F.
14. The Council has confirmed it is currently seeking to remove both LPAs through the Court of Protection.

Analysis

15. It is not for the Ombudsman to decide whether either Mr D or Mr F are suitable to act as Mr E’s LPAs. But while a question remains about this, my view is we cannot accept Mr D as a suitable representative to make this complaint on Ms E’s behalf.

Back to top

Final decision

16. I have discontinued my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman