Summary: Mrs Y complains about the Council’s actions in relation to a mental capacity assessment for her adult son, Mr Z. She also complains about the actions of the social workers and delay in reassessing Mr Z’s needs. We find no fault in the way the Council arranged or completed the assessment. The Council partially upheld the complaint about the tone of a social worker’s email and upheld the complaint about delays in responding to Mrs Y’s request for a review of Mr Z’s support needs. The Council apologised, and we consider this to be a proportionate remedy for the injustice caused by that fault.

The complaint

1. Complaint one - Mrs Y complains the Mental Capacity Assessment completed by the Council for her son was mishandled, initiated on flawed grounds, and influenced by the social worker’s bias.
2. Complaint two - Mrs Y says her son’s rights were not upheld during the assessment, including the choice of advocate and venue, and that no accountability or remedial action followed despite raising concerns.
3. Complaint three - Mrs Y also complains that similar issues occurred with the next social worker, including disregard for the Court of Protection Deputyship Order, adversarial communication, and inappropriate attempts to engage her son directly despite his lack of capacity.
4. Complaint four - Mrs Y also complains about repeated delays and obstruction in reassessing her son’s care needs.

Back to top

The Ombudsman’s role and powers

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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
7. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

Back to top

What I have and have not investigated

9. Mrs Y raises concerns about procedural fault in the Council’s handling of a safeguarding referral it received in October 2023. This issue did not form part of Mrs Y’s complaint to the Council made on 11 March 2025. She says this is because she was not aware of the safeguarding referral at the time.
10. The law says we will not normally investigate a complaint unless the organisation has been made aware of it and given an opportunity to investigate and respond. I consider it was reasonable for Mrs Y to raise this issue with the Council once she became aware of the safeguarding referral. As the Council has not yet had the opportunity to consider a complaint about this matter, the Ombudsman has not investigated it as part of this case.

Back to top

How I considered this complaint

11. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
12. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. I exercised discretion to investigate matters dating back to 2022 because Mr Z did not have capacity to raise those complaints himself at the time.

Back to top

What I found

14. Mrs Y has an adult son, who I will call Mr Z. He has several physical and learning disabilities and is eligible for care and support under the Care Act. Until September 2023, Mr Z lived in a residential college placement. He then became a day student before leaving college in July 2024.
15. Mrs Y’s complaint is about the process followed by the Council in assessing whether Mr Z had the mental capacity to make decisions about his care and support needs. The complaint also concerns the Council’s correspondence with her about the issues and delays in reassessing Mr Z when his circumstances changed.

Complaints one and two

16. In October 2022 the Council contacted Mrs Y to discuss its intention to assess Mr Z’s mental capacity around the decision to place a camera in his bedroom. The Council made an appointment to visit Mr Z at their college placement on 19 October 2022; however, this was cancelled the day before as Mr Z was unwell.
17. In January 2023 the Council allocated a new social worker to Mr Z’s case. They explained the need for the Council to complete a mental capacity assessment (MCA) regarding Mr Z’s ongoing care, support and safety. Mrs Y responded to confirm Mr Z’s consent and to discuss availability.
18. The Council confirmed its intention to visit Mr Z at their family home on 3 March 2023 to complete the MCA.
19. Mrs Y made several complaints about the conduct of the assessment. In particular, she says:
• The assessment started abruptly and unexpectedly with a room full of people. This was contrary to the expectation of a quieter setting. Mrs Y said Mr Z became agitated and tearful.
• The assessor did not allow Mr Z time to settle and immediately started to question him, which caused distress. Mr Z’s brother tried to assist with breathing techniques, but Mr Z remained anxious and the assessment ended without completion.
20. The social worker sent an email to Mrs Y on 30 March 2023 to confirm: “I would like to arrange a visit to [Mr Z] at [college name] to assess his mental capacity in relation to care and support. I visited [Mr Z] at his family home a few weeks ago to conduct this assessment, but he became so emotional and tearful so I could not fully assess his ability to make own decisions in relation to care and support. Mrs [Y] has suggested that [Mr Z] can be supported by [college staff member] during this assessment. I would like this assessment to be conducted as an informal chat as [Mr Z] gets anxious about question and answer sessions or formal meetings”
21. Mrs Y emailed the social worker on 16 April 2023 to propose the use of an annexe within her property as a venue for the assessment. Mrs Y also suggested the use of a different person to support Mr Z.
22. The social worker said the assessment should take place at the college to provide a more holistic view, as its purpose was to assess how Mr Z responds in a different environment, having already seen him in the family home.
23. On 21 April 2023 Mrs Y responded to confirm that Mr Z wanted to be supported by the same person who virtually attended the previous assessment in March, and not the college staff member previously suggested.
24. The social worker responded to say, in their view, the college staff member should be present instead of someone else close to Mr Z because this will, “… remove the reliance on those other people to answer questions, this was evident when [Mr Z] was seen at the family home where he would ask his family members if he should answer a question in a certain way”.
25. The records show the Council suggested several dates in April 2023 to complete the MCA, but the assessment did not go ahead because an agreement could not be reached about who should support Mr Z.

Was there fault causing injustice?

26. Mrs Y reports that the March 2023 assessment began suddenly in a crowded room, despite Mr Z’s expectation for a quieter setting. She says this contributed to Mr Z becoming distressed and the assessment ending early.
27. Mrs Y asserts the March 2023 assessment broke down because the Council did not comply with MCA guidance, particularly regarding the number of people present. However, it is also clear that the assessment took place at home, with Mr Z receiving support from family members as requested. The records provided by Mrs Y show that only two Council officers were present. The number of people present to support Mr Z was greater than the number of professionals. I do not therefore find fault with this approach.
28. Throughout April 2023, email exchanges show the social worker tried to arrange another assessment. Mrs Y and the Council disagreed about where the assessment should happen and who should support Mr Z. Because the previous assessment had broken down, the social worker wanted to try a more informal approach in a different environment to help Mr Z feel more at ease.
29. Mrs Y wanted the Council to agree to complete the assessment with the same advocate who attended in March. The social worker felt someone else would be more suitable. The Mental Capacity Code of Practice says that assessments must be conducted fairly and free of influence. The social worker had concerns about the suggested advocate and discussions therefore continued until an agreement could be reached. Because of this, the assessment did not go ahead in April as planned. In my view, this was not due to procedural fault by the Council.

Complaint three

30. Deputies appointed by the Court of Protection can make decisions within the scope of their appointment, such as matters relating to property and financial affairs and/or health and welfare. However, deputyship does not remove the person’s own legal rights. The person may still have capacity for some decisions, and professionals may continue to involve them in decision making.
31. Councils may communicate directly with the person when they have capacity for the issue being discussed, or when the contact is routine or to provide information. Good practice is for councils to keep both the person and the deputy informed unless there is a clear reason not to. Deputies should receive copies of relevant correspondence, and councils should contact the deputy directly about decisions or issues that fall within their authority under the deputyship order.
32. Mrs Y refers specifically to interactions she had with a social worker in February 2025. The social worker had raised the idea of speaking to Mr Z on his own when discussing arrangements for an upcoming review. She suggested visiting him at college without Mrs Y present. Mrs Y made clear she did not agree to the social worker approaching Mr Z alone because of his vulnerabilities and past negative experiences.
33. After further discission, the social worker later clarified that she would not speak to Mr Z alone without his consent. When explaining their role, the social worker referred to some serious safeguarding examples which Mrs Y said demonstrated a non-collaborative and “risk framed” approach.

Was there fault causing injustice?

34. The social worker’s comments caused worry for Mrs Y because she suggested she could speak to Mr Z alone and raised the possibility of approaching him at college. Mrs Y had already explained Mr Z’s vulnerabilities and past distress during similar interactions. This led to stress for both her and Mr Z, particularly because Mr Z became worried that a social worker might turn up unexpectedly.
35. However, the social worker was correct to point out that deputies cannot impose a blanket ban on professionals speaking with Mr Z. The Council was entitled to remind Mrs Y of this. Professionals may decide to speak to someone independently where this is necessary for safeguarding or to obtain the person’s own views. But the way the social worker presented this was firm and relied heavily on broad and serious safeguarding examples that were not directly connected to the circumstances of Mr Z’s case.
36. Despite this, there is no evidence the social worker contacted Mr Z directly or attempted to speak to him without Mrs Y’s knowledge. Because no direct contact took place, the impact on Mr Z was limited to some short-term worry. In response to Mrs Y’s complaint, the Council accepted the tone of the social worker’s email could have been “more sensitive”. The Council apologised for this. On balance, the injustice to Mrs Y and Mr Z was appropriately remedied by the apology provided and we do not recommend anything further.

Complaint four

37. Mrs Y complains that since April 2024 she has repeatedly asked for an increase in Mr Z’s care package following the reduction in his college hours. She says the Council delayed in reassessing Mr Z following the change in his circumstances.
38. Mrs Y says she told Mr Z’s social worker in May 2024 that her family faced significant strain in managing Mr Z’s care needs. Despite the urgency expressed by Mrs Y, the Council delayed in completing its assessment. Mrs Y complains that, once the social worker completed the assessment, there were no adjustments made to Mr Z’s care provision.
39. In response to Mrs Y’s complaint, the Council said its records show that in April 2024 it made contact about a surplus in Mr Z’s Direct Payment (DP) account. During those conversations, Mrs Y told the Council she had concerns about Mr Z’s support. Following that conversation, the Council booked an assessment which the social worker completed on 17 June 2024.
40. The Council sent the draft assessment to Mrs Y on 5 July 2024. Mrs Y took some time to review the assessment with Mr Z’s advocate, and she returned it to the Council on 24 September 2024. In the meantime, Mrs Y asked for respite care which the Council agreed to fund from the DP surplus.
41. Mrs Y then contacted the Council again on 14 November 2024 regarding Mr Z’s support needs. The Council says its records show that it had a discussion in January 2025 about Mr Z’s brother acting as his Personal Assistant (PA).

Was there fault causing injustice?

42. The Council accepts there was a delay in reviewing the email Mrs Y sent in November 2024 and it offered an apology for this. In my view, the Council’s apology is a proportionate remedy for the delay in responding to this email.
43. In terms of the general transition planning, the records from Mr Z’s reviews show the Council assessed Mr Z’s needs, tracked changes, and took action to support his move from full-time education into adulthood. The Council considered possible next steps, including supported living, continued education at a college, and activities on days he was not in college. The records also show the Council had input from Mr Z’s family, SEND professionals, and education staff.
44. The later Care Act assessments also show the transition was handled appropriately. The Council completed full reassessments at the point Mr Z was due to leave college. These assessments identified Mr Z’s complex needs, risks, and the level of support needed as he moved into adult services.
45. In my view, there is no fault in the assessment process. While I appreciate that Mrs Y felt the situation in April 2024 was urgent, the Council completed the reassessment within eight weeks of the request. This does not constitute delay. Although Mrs Y disagrees with the outcome of that assessment, there is no evidence of administrative fault and so we cannot question the merits of the outcome.

Back to top

Decision

46. The Council has already provided an appropriate remedy for the parts of the complaint in which there was fault causing injustice. In our view, there is no evidence of further fault in the other parts of Mrs Y’s complaint.

Back to top

Investigator's decision on behalf of the Ombudsman