Summary: We will not investigate Mr and Mrs X’s complaint about the Council’s social worker reporting them to the Office of the Public Guardian. This is mostly because there is not enough evidence of fault by the Council and further investigation by us is unlikely to achieve a worthwhile outcome.

The complaint

1. Mr and Mrs X complain that the Council’s social worker reported them to the Office of the Public Guardian (OPG) without first consulting them. They also complain about the Council’s handling of their complaint.
2. Mr and Mrs X say the situation caused them significant distress. They want the social worker to apologise and undergo further training, and for the Council to allocate a different social worker.

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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, or
• any injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

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How I considered this complaint

6. I considered information provided by Mr and Mrs X.
7. I also considered the Ombudsman’s Assessment Code and the Mental Capacity Act Code of Practice.

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My assessment

8. Mr and Mrs X are attorneys for their adult child. The Council social worker allocated to their child’s case reported concerns about Mr and Mrs X to the OPG, which led to an OPG investigation. The OPG decided Mr and Mrs X were acting in their child’s best interests.
9. Mr and Mrs X are unhappy the social worker did not first raise concerns with them before contacting the OPG.
10. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
11. The Mental Capacity Act Code of Practice says professionals should watch for signs of abuse or exploitation by attorneys and report concerns to the OPG immediately.
12. The Council’s response shows the social worker acted with managerial oversight and used their professional judgement. I am satisfied it was open to the social worker to report to the OPG if they had concerns about Mr and Mrs X’s actions as attorneys. We cannot question the social worker’s professional judgement where there was no fault in how they made their decision.
13. There is no legal requirement for the Council to consult Mr and Mrs X before reporting to the OPG. Therefore, there is not enough evidence of fault on this point to justify us investigating. In any event, the Council acknowledged it would have been more appropriate to involve Mr and Mrs X and has apologised for this. I consider this an appropriate remedy for any injustice caused. Now the OPG has made a decision, further investigation by us is unlikely to achieve a worthwhile outcome.
14. I acknowledge that Mr and Mrs X also want the Council to allocate a different social worker and for the social worker to undergo training. The law prevents us from investigating staffing decisions. In any event, the Council has considered their request and explained the reasons for its staffing decision. It is unlikely further investigation by us would find enough evidence of fault on this point.

Complaint handling

15. Mr and Mrs X also complain about the Council’s complaint handling. They say the Council failed to address all aspects of their complaint or respond to their requests for information about the OPG referral.
16. As a publicly funded body we must be careful how we use our resources. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. As we are not investigating the substantive issue about the social worker reporting to the OPG, then we will not investigate the complaint handling on its own.

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Final decision

17. We will not investigate Mr and Mrs X’s complaint because there is not enough evidence of fault by the Council and investigation by us is unlikely to achieve a worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman