Summary: there was a communications failure between Council departments which meant the decision of a Best Interest Meeting about Mr X was not properly disseminated. As a result, the Council did not share information which it could reasonably have done with Mr A and Ms B. The Council should apologise to Mr A and Mrs B and put things right going forward.

The complaint

1. Mr A and Mrs B complain about the way the Council has decided that it cannot share information with them about their disabled brother Mr X. They say as a result they have been unable to provide the support they would have otherwise have done if they had better knowledge of his care and support, particular in respect of the cleanliness of his flat and his personal care.

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The Ombudsman’s role and powers

2. 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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I considered the information provided by the Council and by Mr A. I spoke to Mr A and Ms B. All parties have had an opportunity to comment on an earlier draft of this statement and I considered their comments carefully, and made further enquiries, before I reached a final decision.

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What I found

Relevant law and background

5. The Mental Capacity Act 2005 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.
6. 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.

7. 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.
8. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

9. 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.
10. A key principle of the Mental Capacity Act 2005 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

What happened

11. Mr X is an adult with learning disabilities. His brother Mr A and his sister Mrs B provided some support for him and were party to information about him until 2018. After that they say the Council stopped sharing information about Mr X with them as there were allegations that Mr A had accessed Mr X’s finances.
12. Mr A and Mrs B say that the Council’s decision not to share information with them has meant that they have been unable to provide proper support for Mr X who they say is living in poor conditions. They say the extractor fan in his bathroom did not work for over a year and there was a build-up of mould and dirt in the bathroom as a result. They say Mr X is happy to share information with them.
13. The Council undertook a capacity assessment of Mr X in May 2023 after Mr A had accompanied him several times to the Council offices asking for Mr X’s records to be shared. The assessor reached the decision that Mr X lacked capacity to make an informed decision relating to sharing information relevant to him.
14. In June 2023 the adult social care department arranged a Best Interest Meeting to consider sharing information about Mr X with his brother and sister. Mr A and Mrs B were present, as were Mr X’s advocate, social worker and manager of the service which provided his care package.
15. The outcome of the meeting was a decision from then on to “share and include” information about Mr X’s ongoing care and support, including invitations to assessments and meetings. It was agreed this would be in Mr X’s best interests as it would better inform the outcome of future assessments and support his relationships.
16. In September 2023 Mrs B complained to the Ombudsman that the Council still refused to share information with her and Mr A. The Council told us then that another capacity assessment had reached the decision that Mr X did not have capacity to share information. We closed the complaint on the grounds the Council could not share information without Mr X’s consent.
17. The Council now says that the adult social care section (Focus) did not share with it the notes or outcome of the Best Interest Meeting in June 2023. It says “Had we been made aware of this by Focus or the family, we do believe our decision making in relation to the complaint would have been different”. The Council has offered a meeting with Mr A and Mrs B to resolve the matter and consider how best to move forward in Mr X’s best interests.
18. Mr A and Mrs B declined to meet the Council until the Ombudsman had considered the complaint.
19. Mr X’s social worker says that since December 2023 Mr X has received a commissioned care package which incudes some domestic help in his bathroom and kitchen. Mr X manages the rest of the cleaning himself.
20. The Council says it agrees that “the Best Interest Meeting decision should have been communicated to the complaints team and …. this may have altered our decision making in terms of the complaint process. However, we are unclear on the evidential basis that this limited the family’s ability to support their brother.” The Council has provided documentary evidence showing many examples when Mr X’s family were able to continue supporting him although at that time he had not given consent to sharing information with them.
21. In addition, the Council says it did encourage the family to raise any concerns with the adult social work team or the provider, and services continued to respond to any concerns raised by the family whilst also respecting the wishes of Mr X.

Analysis

22. There was no fault in the way the Council carried out the capacity assessment in May 2023 or the subsequent Best Interest Meeting.
23. However, the Council was very clearly at fault in failing to communicate the outcome of the Best Interest Meeting to all parties. That led to misinformation being provided to Mr A and Mrs B, and a failure to disclose information which they considered might have been of help to them in supporting their brother. It also led to inaccurate information being supplied to the Ombudsman.

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Agreed action

24. Within one month of my final decision the Council should apologise to Mr A and Mrs B for its error.
25. Within one month of my final decision the Council should arrange to meet with Mr A and Mrs B to discuss the way forward in terms of sharing information which could assist their support of Mr X and provide us with the details.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed this investigation on the basis there was fault on the part of the Council which caused injustice to Mr A and Mrs B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman