The Ombudsman's final decision
Summary: We will not investigate this complaint about a Council’s best interests decision. That is because the complaint is late, and the matters are best considered through the Court of Protection.
The complaint
Mr X complained the Council was not allowing him to have contact with his son, Mr Y. He also said the Council refused to share Mr Y’s care records with him. Mr X wants the Council to support contact with Mr Y and would like to receive copies of his care plan.
The Ombudsman’s role and powers
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) 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) 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 Y does not have capacity. He is cared for by the Council. Information provided by the Council demonstrates that it has restricted Mr X’s contact with Mr Y since before 2015.
The Council confirmed it had recently completed a further mental capacity assessment for Mr Y. It remained of the view it was not in Mr Y’s best interests to have contact with Mr X. It has told Mr X he can challenge this decision through the Court of Protection. The Council also told Mr X it will not share Mr Y’s personal information with him because to do so would be a breach of data protection legislation.
Although Mr X is unhappy with the Council’s complaint response, we will not investigate. Firstly, the complaint is late. The matters Mr X complains about have been ongoing since 2015. It would have been reasonable for him to complain sooner if he was unhappy with the outcome of the Council’s best interests decision.
In any event, even if the complaint was not late, we would not investigate. The Council has directed Mr X to the Court of Protection if he wants to challenge its best interests decision. The Court of Protection makes decisions on welfare matters for people who lack mental capacity. The Court of Protection is best placed to consider any disagreement between Mr X and the Council.
In addition, any complaints Mr X has about the Council sharing Mr Y’s personal information are best considered by the Information Commissioner’s Office (ICO). The ICO delas with complaints relating to data protection legislation.
Final decision
We will not investigate Mr X’s complaint because it is late and the substantive matter is best dealt with by the Court of Protection.
Investigator's decision on behalf of the Ombudsman