The Ombudsman's final decision
Summary: Ms X complained about the way the Council dealt with safeguarding concerns about Mrs Y. We do not find fault with the actions of the Council.
The complaint
Ms X complains the Council failed to conduct a capacity assessment for Mrs Y, did not act when she raised concerns about two individuals with Lasting Power of Attorney and did not discuss allegations made about her. Ms X says the Council’s actions have prevented her from seeing Mrs Y, which has caused distress. Ms X would like to see Mrs Y and for the Council to properly investigate her concerns.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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(i), as amended)
What I have and have not investigated Ms X complained the Council did not fully respond to her queries about a block placed on Mrs Y’s phone. She also complained about the Council’s response to safeguarding concerns she raised in 2021. We can only usually investigate complaints about events that took place in the last 12 months, unless there are good reasons why she could not come to us sooner. I have seen correspondence that shows Ms X was aware of these issues in 2022. She was told by the Council that she could come to the Ombudsman in 2022, and I can see no good reason why she did not. Therefore, I have not investigated these complaints.
Ms X complained the Council copied third parties into correspondence with her. I have not investigated this complaint, because it is a complaint about Ms X’s personal data. I cannot investigate this as the Information Commissioner deals with complaints about data breaches.
How I considered this complaint
I spoke to Ms X about her complaint and considered information she provided. I also considered information received from the Council.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and Policy Safeguarding A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Section 42, Care Act 2014) Mental capacity A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision: because they make an unwise decision; based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or before all practicable steps to help the person to do so have been taken without success.
The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
An assessment of someone’s capacity is specific to the decision to be made at a particular time.
The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
Lasting Power of Attorney The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
There are two types of LPA.
Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
What happened Ms X says that in 2023 she became aware one of Mrs Y’s LPAs had made allegations about her to the Council in 2020. She states the Council did not discuss these allegations with her but, instead, accepted the LPA’s view. Ms X says her relationship with Mrs Y broke down, as Mrs Y believed the allegations.
Ms X says the Council ignored her request to conduct a new capacity assessment for Mrs Y in 2022, after she became aware of changes to Mrs Y’s medical needs.
Ms X says she has concerns the LPAs are isolating Mrs Y from her family. She has reported this to the Council but feels nothing has been done.
The Council wrote to Ms X on a number of occasions and explained that Mrs Y wanted advance notice of any intended visits. It would then be up to Mrs Y whether she agreed to individual visits taking place.
The Council has provided evidence of its actions, but explained that as Ms X does not have an LPA, it is limited as to what information can be shared with her.
Analysis Ms X says one of the LPA’s made allegations about her treatment of Mrs Y to the Council in 2020. She says she only became aware of the allegations during a conversation with the LPA in 2023, and is unhappy the Council never spoke with her at the time the allegations were made.
When allegations are made, a Council must make enquiries if it thinks a person may be at risk of abuse or neglect, and has care and support needs which mean the person cannot protect themselves. It is the Council’s decision how a safeguarding enquiry is conducted. This could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. If it considers that a formal safeguarding enquiry is not necessary, it can still make enquiries. There is no requirement for the Council to have spoken with Ms X about any concerns raised.
Although Ms X has concerns about Mrs Y’s mental capacity, she does not hold an LPA in relation to Mrs Y’s health and wellbeing. This means the Council do not need to take any action, such as completing a capacity assessment, at her request. However, the Council has provided evidence that it has carried out assessments when deemed appropriate.
Ms X says the LPA’s have isolated Mrs Y from family members. The Council has written to Ms X several times to explain Mrs Y’s views about family visits. Whilst this may be disappointing to Ms X, it is not fault on the part of the Council.
Final decision
I find the Council is not at fault and complete my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman