Summary: We will not investigate this complaint about a best interests decision made by the Council. That is because it would be reasonable to refer the matter to the Court of Protection.

The complaint

1. Mrs X complained about a decision the Council had made concerning her mother, Mrs Y. She said that decision was not in Mrs Y’s best interests as it would cause her distress. She believes the Council are breaching Mrs Y’s Human Rights.
2. Mrs X said the Council had threatened her with court action to resolve the disagreement. Mrs X wants the Council to reconsider its decision.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X has Lasting Power of Attorney for Mrs Y. Mrs Y has dementia and no-longer has capacity. Mx W is a family member of Mrs Y and wants contact with Mrs Y. Mrs X will not allow this contact. She said it would negatively impact Mrs Y’s mental health.
9. The Council assessed whether Mx W should have contact with Mrs Y. In doing this it considered the concerns expressed by Mrs X, spoke to professionals involved, assessed Mrs Y’s capacity and sought her views on contact with Mx W. Its view was that contact was appropriate. It said it would continue to work with Mrs X to resolve the situation. It said if it could not reach agreement around contact between Mx W and Mrs Y, it would refer the matter to the Court of Protection.
10. Although Mrs X is unhappy with the Council’s complaint response, we will not investigate. I am satisfied the Council has followed the correct steps in considering whether contact between Mx W and Mrs Y is appropriate. There is not enough evidence of fault to justify our involvement. If Mrs X disagrees with the outcome of the Council’s assessment and cannot resolve the issue of contact, it is appropriate to refer the matter to the Court of Protection. That is because the Court of Protection has the ultimate responsibility for making decisions for those who lack capacity.

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Final decision

11. We will not investigate Mrs X’s complaint because the Court of Protection is best placed to deal with disagreements about best interests decisions when a person lacks capacity.

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Investigator's decision on behalf of the Ombudsman