Summary: We will not investigate this complaint from Mr B that he was prevented from seeing his mother. This is because there is not enough evidence of fault in the Council’s actions, who completed the correct process to decide Mr B’s mother had capacity to decide whether to see Mr B. Further investigation would not add to the Council’s investigation or reach a different outcome.

The complaint

1. Mr B says the Council banned him from seeing his mother for four months and failed to consider his views. Mr B found it stressful.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered:
• information provided by the complainant.
• I considered the Ombudsman’s Assessment Code.
• The Mental Capacity Act 2005 and associated statutory guidance.

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My assessment

4. Mr B says he received a phone call from the Council saying his mother, Ms C, did not want to see him so he could not visit the care home where she lived. Mr B’s view is because Ms C had dementia, she did not have capacity to decide, and someone else had coerced her.
5. Under the Mental Capacity Act a particular diagnosis is not evidence that a person does not have capacity to make their own decisions. Mental capacity is also time and decision specific. So, for example a person may not have capacity to manage their own finances but might have capacity to decide what they would like to eat or wear.
6. The Council visited Ms C and completed a mental capacity assessment on whether she could decide who she wanted to visit her. The Council decided Ms C could make this decision, and it is on this basis it told Mr B he should not visit.
7. Mr B is unhappy the Council did not visit him or listen to his views. There was no fault in the Council’s actions because Mr B’s views would not change the situation. The Council’s role was to ensure Ms C’s wishes were followed. The Council did not ban Mr B from visiting, it told him of Ms C’s wishes.
8. Four months later Ms C said she wished to see Mr B, and the Council let Mr B know. This is further evidence the Council was enabling Ms C’s wishes to be followed rather than seeking to prevent Mr B access to his mother.
9. Mr B says he had an independent capacity assessment which said Ms C did not have capacity. However, that is not evidence that at the time of the Council’s assessment the Council’s assessment was wrong.
10. I appreciate the stress and upset to Mr B for the time he could not visit his mother, but it is unlikely we would find that was caused by fault of the Council. On the information available there is no evidence of fault, and the Council was following the wishes of Ms C.

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Final decision

11. We will not investigate Mr B’s complaint because there is not enough evidence of fault, we could not add to the Council’s investigation, and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman