Summary: Ms X complains the Council did not facilitate her, or her mother’s, contact with her aunt. The Ombudsman will not investigate this complaint further as the Council has agreed to make an application to the Court of Protection providing contact is still in the best interests of Ms X’s aunt.

The complaint

1. Ms X complained the Council has not facilitated her, or her mother’s, contact with her aunt. She says this has been extremely distressing to her family.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered all the information Ms X provided. I have also considered the Council’s response to her complaint. Ms X has had the opportunity to comment on my draft decision.

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What I found

4. Ms X and her mother, Mrs Y, seek contact with Ms X’s aunt, Mrs B. Mrs B previously lived in a care home where she received visits from Ms X and Mrs Y. Mrs B’s son later moved Mrs B to a new care home and refused to share the new address with Ms X and Mrs Y. Neither Mrs B’s son nor Ms X have legal authority to make decisions about Mrs B’s welfare.
5. After receiving a safeguarding referral from Ms X, the Council carried out a mental capacity assessment of Mrs B to determine whether she had capacity to decide whether to share her address with Ms X and Mrs Y. The Council found Mrs B did not have capacity.
6. The Mental Capacity Act 2005 says that where a council finds a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests. The Council made a best interests decision in January 2020 and decided it would be in Mrs B’s interests to have contact with Ms X and Mrs Y. Mrs B’s son disputed this and refused to allow contact.
7. The Council said it had no authority to override Mrs B’s son’s objections and that Ms X should apply to the Court of Protection to have the dispute settled. The Court of Protection can make decisions about someone’s personal welfare, including settling disagreements about contact.
8. However, once the Council made a best interests decision, it had a responsibility to implement it. When Mrs B’s son refused to allow Ms X and Mrs Y contact with Mrs B, the Council should have applied to the Court of Protection.

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Agreed action

9. The Council has agreed to make an application to the Court of Protection providing a new best interests meeting finds contact with Ms X and her mother is still in the best interests of Ms X’s aunt.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because the Council has agreed to apply to the Court of Protection to resolve the dispute about her and her mother’s contact with her aunt, providing contact is still in her aunt’s best interests.

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Investigator's decision on behalf of the Ombudsman