Summary: We will not investigate this complaint about how the Council considered Mr X’s safeguarding concerns relating to his mother. The Council agreed to carry out a further Section 42 enquiry, including a new mental capacity assessment and independent advocacy. We could not achieve anything further by investigating.

The complaint

1. Mr X complained the Council failed to act on his safeguarding concerns relating to his mother (Miss Y). His concerns related to Miss Y’s carer, who Mr X said unduly influenced and controlled Miss Y. Mr X said the Council failed to recognise his role as Miss Y’s attorney, and wrongly used complaints procedures in response to his safeguarding referral.
2. Mr X said the matter had left Miss Y and another family member exposed to continuing risk and caused him significant distress and inconvenience. He wanted the Council to conduct a Section 42 enquiry and provide Miss Y with an independent advocate.

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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:

• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

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

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My assessment

8. Mr X’s complaint to us includes matters he raised in 2024, more than 12 months before complaining to us. Those matters are late, and there is not a good reason Mr X did not escalate that complaint to us at the time. We will therefore not consider the concerns he raised in 2024, and have restricted our assessment to the subsequent events of 2025.
9. Mr X holds Lasting Power of Attorney (LPA) for his mother. LPAs can be used to make decisions in a person’s best interests if they cannot make the decision themselves due to losing mental capacity.
10. Mr X raised a safeguarding concern with the Council in mid-2025 in relation to Miss Y’s carer. The Council assessed Miss Y and decided she had the mental capacity to make the relevant decision in relation to how her care and support needs should be met. It closed its enquiry.
11. Mr X raised a further safeguarding concern in September 2025. The Council told Mr X it would require consent from his mother before it could consider a complaint on her behalf. Mr X clarified that his communication had been a new safeguarding referral and not a complaint. Mr X then complained to us.
12. Mr X disputes the Council’s capacity assessment, as the Council stated Miss Y had difficulty weighing up the relevant information to come to a decision but nonetheless decided she had mental capacity. The Council’s reasoning for its decision was included in the assessment; it explained Miss Y’s difficulty weighing up the relevant information was not caused by her cognitive impairment.
13. Mr X also refers to other capacity assessments, for example one completed in relation to medical treatment, as evidence to challenge the Council’s decision about Miss Y’s mental capacity. However, mental capacity is time and decision specific. A decision Miss Y lacks capacity relating to her medical treatment does not mean she also lacks capacity in relation to her care and support needs. It was the Council’s responsibility to carry out its own capacity assessment specifically in relation to Miss Y’s care and support needs.
14. Mr X’s concern about the Council not recognising his role as LPA ultimately rests on whether Miss Y has mental capacity or not. The Council explained to Mr X that his LPA would only be relied on for decisions Miss Y did not have capacity to make herself. This is in line with the legislation.
15. Only the Court of Protection could come to a definitive decision about Miss Y’s mental capacity where there is continued disagreement. We could not decide whether she had capacity. The most we could achieve, if we found evidence of fault in the Council’s capacity assessment, would be recommending it carries out a new assessment.
16. In addition, if we found delay in the Council beginning a Section 42 enquiry after Mr X’s referral of September 2025, we would likely recommend the Council completes an enquiry.
17. In October 2025, the Council agreed to carry out a fresh capacity assessment as part of a new Section 42 enquiry, providing Miss Y an independent advocate to ensure she could properly engage in the process. Further investigation by us could not achieve anything different. Any complaints Mr X has about events that occurred after he complained to us, for example about that subsequent enquiry and its outcome, would need to be the subject of a new complaint to the Council, then us if necessary.
18. Mr X raised concerns about the Council’s response to a request for information. The Information Commissioner is best placed to consider this matter.
19. It is not a good use of public resources to investigate complaints about complaint-handling where we are not investigating the substantive matter. We will not therefore consider Mr X’s complaint about the Council’s use of complaint procedures in isolation.

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Final decision

20. We will not investigate Mr X’s complaint because we could not achieve a different or more meaningful outcome by doing so.

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Investigator's decision on behalf of the Ombudsman