Summary: We will not investigate this complaint about best interest decisions made under the Mental Capacity Act. The Court of Protection is better placed to decide what is in somebody’s best interests. There is not enough evidence to support the Council acted with discrimination, and that is for a court to decide.

The complaint

1. Mr B says the Council was prejudiced and discriminatory when it decided his mother, Ms C’s, care support arrangements. Mr B wants that decision overturned.

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The Ombudsman’s role and powers

2. 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 not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.
5. I considered the Mental Capacity Act 2005 and associated statutory guidance.
6. I considered the Equality Act 2010.

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My assessment

7. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
8. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

The ‘protected characteristics’ referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

9. Mr B says the Council was prejudiced and discriminatory, seemingly based on his sex. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts.
10. Ms C receives privately arranged care at home. The Council became involved because a professional deputy responsible for Ms C’s finances contacted it. The care provider served notice to withdraw care support which may leave Ms C without support.
11. The Council followed the correct process under the Mental Capacity Act to assess whether Ms C could decide who should provide her care; she could not decide that. So, following the correct process under the Mental Capacity Act, the Council arranged a best interests meeting, involving Mr B and other family members, to decide who should provide Ms C’s care. Despite serving notice the care provider said it could continue, and it was decided in Ms C’s bests interests the provider continue for consistency of care support. Mr B is unhappy with that decision.
12. The reason the care provider had given notice was because of a breakdown in relationship with Mr B. So, it was decided another sibling would become its contact. Mr B is unhappy with that decision.
13. There is no evidence to support the Council acted in a discriminatory way to Mr B because of his sex. The information supports the Council was meeting its duty to act in Ms C’s best interests, including agreeing a change to the care provider’s contact to ensure the likelihood of it continuing its support to Ms C. I understand why Mr B is aggrieved by this, but the Council’s only duty is to act in Ms C’s best interests regardless other issues such as family disputes.
14. The Ombudsman cannot achieve the outcome Mr B wants, to overturn the Council’s decision. If Mr B wants to challenge what is in Ms C’s best interests, he would need to take the matter to the Court of Protection to decide.

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Final decision

15. We will not investigate Mr B’s complaint because there is not enough evidence of fault or discrimination in the process the Council followed to decide what is in Ms C’s best interests. We cannot add to the Council’s investigation or achieve the outcome Mr B wants. The Court of Protection is better placed to consider this complaint because it can decide what is in Ms C’s best interests where there is a dispute. Mr B may wish to seek legal advice about discrimination, as that is a matter for the courts rather than the Ombudsman to decide.

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Investigator's decision on behalf of the Ombudsman