Summary: We will not investigate the Council’s responses to Mrs X’s complaint about a relative’s decision to move back home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. We are unlikely to achieve anything worthwhile or add to the investigation already carried out.

The complaint

1. In summary, Mrs X says she is unhappy with the Council ‘allowing’ a relative to decide to move back into the family home.
2. Mrs X complains her relative’s medical condition means they cannot make a decision to move back home and it will create a challenging situation for her family.
3. Mrs X says she needs to sell their home to meet the best interests of her family as she cannot live at home with the relative due to their medical condition.

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The Ombudsman’s role and powers

4. 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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
5. We provide a free service but must use public money carefully. We do not start an investigation if we decide we could not add to any previous investigation by the Council or achieve a worthwhile outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant which includes the Council’s response.
7. I considered the Ombudsman’s Assessment Code.

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My Assessment

8. Mrs X describes the relative’s mental capacity to decide to move home as being the key issue in her complaint.
9. The Council says it is in the process of arranging a mental capacity assessment of the relative in question. But in the present moment it considers the relative can move back home as they are not settled in their present accommodation.
10. We will not investigate. This is because we are unlikely to achieve anything worthwhile due to the ongoing work in arranging a capacity assessment.
11. I should add that it is the Court of Protection that deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions.

12. Mrs X strongly disagrees with the Council’s previous assessments that Mr X did have mental capacity to decide where to live. But an investigation by us would not be able to resolve this as only the Court of Protection (CoP) can decide if a person has the capacity to make a particular decision. And it would have been reasonable to expect Mrs X to refer the matter to the CoP if she considered the matter could not be resolved in any other way.
13. Mrs X says she wishes to sell her home. That is not a matter for the Council as it has already advised Mrs X. It seems that, as the relative in question part owns the property, Mrs X may need to get legal advice to protect her private financial interests. So we would not be able to add to the Council’s investigation on this issue.

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Final decision

14. We will not investigate Mrs X’s complaint because we are unlikely to achieve anything worthwhile or add to the investigation already carried out.

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Investigator's decision on behalf of the Ombudsman