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Essex County Council (20 010 614)

Category : Adult care services > Transition from childrens services

Decision : Not upheld

Decision date : 07 Jun 2021

The Ombudsman's final decision:

Summary: Mrs D complained the Council failed to consult her before it removed a phone she gave to her daughter. She also said its Social Worker bullied her. The Council made a decision it was entitled to make. And so, we cannot criticise its decision. There was no evidence of bullying, we cannot therefore make a finding on this matter.

The complaint

  1. The complainant, whom I shall refer to as Mrs D, complained about how the Council acted when she bought a phone for her daughter, Ms X. She said it:
    • failed to consult her before it removed Ms X’s phone;
    • wrongly removed Ms X’s phone; and
    • bullied her for buying her daughter the phone.
  2. As a result, Mrs D said she experienced distress from how the Council spoke with her and due to the reduced ability to be in contact with her daughter.

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What I have investigated

  1. I have investigated the Council’s actions to address Mrs D’s complaint in 2020.
  2. The final paragraph of this decision statement sets out why I did not investigate the concerns Mrs D raised on behalf of Ms X.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of my investigation, I have:
    • considered Mrs D’s complaint and the Council’s response;
    • discussed the complaint with Mrs D;
    • considered the Council’s response to my enquiries; and
    • given Mrs D and the Council the opportunity to comment on a draft version of this decision and considered the comments they made.

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What I found

Law and guidance

  1. The Mental Capacity Act 2005 (the Act) is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
  2. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
  3. A key principle of the Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
  4. There is a series of steps that decision makers must follow to determine what is in a person’s best interests. This includes consulting:
    • anyone named to be consulted on such matters;
    • anyone caring for the person; and
    • anyone interested in the persons welfare.
  5. The decision maker must also consider if there is a less restrictive choice available that can achieve the same outcome.
  6. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

  1. Mrs D’s daughter, Ms X, is an adult with autism and support needs. She receives support from the Council and lives in its independent living accommodation. She has capacity and can communicate for herself.
  2. In late 2020 Mrs D bought Ms X a mobile phone so they could communicate with each other more easily.
  3. After a few weeks, the Council had concerns about Ms X’s use of the phone and internet, and how this affected her mental health. This was because it found she had used it to:
    • accessing inappropriate content;
    • contacting strangers; and
    • make calls after midnight when no support was available.
  4. The Council said based on this it did not believe Ms X understood the risks of having a phone, accessing the internet, and communicating with others online. And so, it decided to assess her understanding of the risks and ability to make appropriate decisions with the phone.
  5. The Council’s Social Worker spoke with Mrs D by telephone and explained its concerns about Ms X’s use of the phone. The call note shows Mrs D was asked why she had not consulted the Council before buying the phone and her view was that Ms X should keep the phone. She acknowledged Ms X was making calls to her late at night.
  6. Mrs D is unhappy about the call and complained to the Council. She says it felt as though the Social Worker bullied her and had a go at her. She did not feel she should have to ask the Council before giving her daughter a phone. She also said the Council had not consulted her about Ms X’s move to her independent living flat.
  7. In addition, Mrs D also complained about the Council’s care of Ms X and said it had wrongly checked her phone activity and removed the phone.
  8. In response the Council told Mrs D it recognised the importance of her comments and it would consider these and speak with the Social Worker. It explained it has no consent to discuss the specific actions or outcome with her at this time and thanked her for raising her comments.
  9. The Council did a Mental Health Assessment to assess Ms D’s ability to understand the risks and make appropriate decisions when using the phone. It found Ms X could not safely use the phone without support. And so, it made a best interest decision to keep the phone locked away and only allow Ms X to use it at certain times of the day when support was available.
  10. Mrs D was not satisfied with the Council’s response and its decision. So, she complained to the Ombudsman.

Analysis

  1. I understand Mrs D is unhappy the Council has restricted the access Ms X has to the phone she gave her, as this helped them to stay in contact.
  2. However, I am not satisfied the Council is at fault. It made a decision it was entitled to make, I cannot therefore criticise its decision. In reaching my view I am conscious that:
    • it properly assessed Ms X’s ability to understand the risk and decision making when using a phone unsupervised;
    • when it found Ms X could not safely use the phone alone, it made a best interest decision on her behalf;
    • it considered the views of the persons involved in Ms X’s care;
    • it spoke with Mrs D and considered her view; and
    • it considered the least restrictive choice available and agreed Ms X should have access to the phone when supervised.
  3. Mrs D also complained the Council’s Social Worker had a go at her and bullied her. I acknowledge the Social Worker and Mrs D had different views on whether Ms X should have a phone. However, I have seen no evidence of bullying or inappropriate behaviour by the Social Worker. I cannot therefore make a finding on this matter.

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Final decision

  1. I have completed my investigation with a finding of no fault by the Council.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs D’s complaint on behalf of Ms X. This is because she does not hold consent to make a complaint on her behalf.

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Investigator's decision on behalf of the Ombudsman

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