Summary: We will not investigate this complaint about restrictions placed upon Mr X’s visits to Ms Y in a care home after he raised concerns about her care. There is insufficient evidence of fault by the Council. Only the Court of Protection can make a decision where there is disagreement about a person’s best interests.

The complaint

1. Mr X complained the Council and the Care Provider it commissioned restricted his access to his common law partner (Ms Y), after he raised concerns about the quality of her care and alleged abuse.
2. Mr X said the matter led to loss of regular in-person contact with Ms Y, and caused him significant distress. He wanted the Council to allow him to begin visiting Ms Y regularly again.

Back to top

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 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)

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Ms Y, who Mr X says is his common-law partner, lives in a care home. Mr X has raised concerns about Ms Y’s care over several years. He says he believes a decision was made to restrict his visits to the care home simply because he had raised concerns about the care Ms Y received.
8. I have seen evidence of how the Council considered the concerns Mr X raised. It considered Mr X’s concerns properly via Section 42 enquiries, consulting the relevant people and agencies, and did not find substantive evidence to support the allegations Mr X had made. There is insufficient evidence of fault in how the Council considered Mr X’s concerns.
9. I have also seen evidence of the Council’s subsequent decision-making relating to Mr X’s in-person visits to the care home. The decision was not based solely on Mr X having raised concerns, as he alleges. The decision also took into account concerns raised about Mr X’s behaviour during visits to the care home.
10. The Council has a duty to act in Ms Y’s best interests. It consulted relevant people and explored different options. It considered what would be the least restrictive option, and considered alternative ways in which Mr X and Ms Y could continue contact via other means. It considered the impact restrictions may have on Ms Y’s and Mr X’s human rights, but decided the restrictions were in Ms Y’s best interests. There is insufficient evidence of fault in how the Council considered the available options and came to a decision.
11. Where there is no fault in how a council has come to a decision, it is not our role to question the outcome of the decision-making process. The Council explained to Mr X the appropriate route for challenging its decision, if he remained in disagreement, was via the Court of Protection. Only the court has the power to come to an independent decision about what is in Ms Y’s best interests.

Back to top

Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault by the Council, and only the Court of Protection can make a decision where there is disagreement about a person’s best interests.

Back to top

Investigator's decision on behalf of the Ombudsman