The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s handling of concerns he raised relating to his mother. This is because an investigation by this office could not add to the response already provided by the Council’s previous investigation. The complaint also lies outside our jurisdiction because it is late.
The complaint
The complainant, whom I shall call Mr X, complains about the Council’s handling of his concerns relating to his mother, Mrs Y, and her capacity to make decisions.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) We do not start an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6)) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained to the Council, in January 2021, about the Council’s handling of his concerns relating to his mother, Mrs Y. He complained a family member had influenced Mrs Y in her decision to remove Mr X as her attorney following a deterioration in her capacity. He said the family member had poisoned his relationship with Mrs Y and prevented him from speaking to her since early 2020. Mr X said the family member was violent and had previously assaulted him.
The Council investigated Mr X’s concerns. It found the Office of the Public Guardian had also investigated the concern and it had concluded Mrs Y had capacity to make her own decisions. The Council said it also found nothing to suggest Mrs Y lacked capacity to decide whether to have contact with Mr X and recent information found she presented as being alert with no sign of cognitive problems. As such, it could not intervene in her decisions, which she was entitled to make. The Council’s response signposted Mr X to this office should he remain dissatisfied.
Mrs Y sadly died in late 2021. Mr X contacted the Council in May 2022. He said he had not received the Council’s response to his complaint. The Council sent Mr X a copy of an email he sent in February 2021 in which he acknowledged receipt of the Council’s complaint response.
The Council had also sent a copy to Mr X by post. Mr X complained the letter had been incorrectly addressed. The Council acknowledged its error and apologised to Mr X. It signposted him to the Information Commissioner’s Office should he wish to complain further about this.
Final decision
We will not investigate Mr X’s complaint because an investigation by this office would not be able to add to the response already provided via the Council’s investigation. It investigated Mr X’s concerns and found Mrs Y had capacity to make her own decisions. There was no role for the Council to intervene on Mrs Y’s decisions. There is nothing further we could add to the Council’s response here.
The Council has correctly signposted Mr X to the Information Commissioner’s Office on the data issue. That is the body best placed to consider data protection matters. We will not consider it.
The complaint also lies outside our jurisdiction because it is late. The law says a complaint should be made to us within 12 months of the person affected first becoming aware of the matter. Mr X was aware of the concerns relating to his mother well over 12 months ago and was clearly signposted to us in early 2021. However, even if the complaint were made in time we would not investigate for the reason set out in paragraph 12, above.
Investigator's decision on behalf of the Ombudsman