Summary: Mrs X complains about the Council’s handling of a complaint she raised on behalf of her two children, Y and Z, investigated under the children’s statutory complaints procedure. The Council is at fault. It has agreed to re-take the best interest decision related to Z, pay Mrs X £600 in recognition of the distress caused to her and Y by lost unsupervised family time and improve its services.

The complaint

1. Mrs X complains about the Council's handling of a complaint she raised on behalf of her two children, Y and Z, investigated under the children's statutory complaints procedure. She says there were flaws in how the Council decided it was not in Z's best interests to share the findings related to them with Mrs X. She also complains the Council has not implemented the recommendations of the stage two investigation or stage three panel after it upheld complaints she raised on behalf of Y.
2. She says the Council's actions mean she does not know the outcome of the complaints she raised on Z's behalf and have caused frustration and distress.
3. She wants the Council to share the full stage two investigation report with her including the findings related to Z and implement all the stage two investigation and stage three panel recommendations.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children's Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I read Mrs X's complaint and spoke with her about it on the phone.
9. I made enquiries of the Council and considered information it sent me.
10. Mrs X and the Council had an opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

The children’s statutory complaints procedure

11. The children's statutory complaints procedure is a three-stage procedure set out in law, for councils to follow when looking at complaints about children's social care services.
12. If a council has investigated something under the statutory children's complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Assessing mental capacity

13. The Mental Capacity Act 2005 (the Act) 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.
14. 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?
15. 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. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person's best interests.

Best interest decisions

16. Where it is found that a person lacks capacity to make a particular decision, any act done for, or any decision made on behalf of that person must be done or made in their best interests. The term 'best interests' is not defined in the Act, however it does set out a checklist of common factors that must always be considered:
• the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
• the beliefs and values that would be likely to influence his decision if he had capacity; and
• the other factors that he would be likely to consider if he were able to do so.
17. Councils must take into account, if it is practical and appropriate to consult them, the views of:
• anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
• anyone engaged in caring for the person or interested in his welfare;
• any donee of a lasting power of attorney granted by the person; and
• any deputy appointed for the person by the court.
18. If there is a conflict about what is in a person's best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person's best interests.

Lasting Power of Attorney

19. The Mental Capacity Act 2005 introduced the "Lasting Power of Attorney (LPA)". 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.

What happened

20. Mrs X complained about the Council's actions in relations to her two adoptive children, Y and Z. At the time of her complaints, both children were under 18.
21. The Council investigated her complaints under the children's statutory complaints procedure. By the time it had completed the stage two investigation, both of her children had turned 18.
22. Mrs X previously approached us about the delay and we found the Council at fault for delay during the stage two investigation process. The Council agreed to complete the investigation within an agreed timescale and pay a financial remedy to Mrs X for the distress caused by the delay.
23. The stage two investigation report contained personal information about the two children. As they were now adults, the Council needed their consent to share this information with Mrs X. Y consented to sharing the parts of the report which contained their personal information with Mrs X.
24. The Council had concerns about whether Z had the mental capacity to decide whether to consent to share their information with their mother. It decided to carry out a mental capacity assessment.
25. The assessment was completed in March 2022 by two officers working with Z. The assessors considered the four questions set out in paragraph 14. They concluded Z did not have mental capacity to make this decision.
26. As Z lacked capacity, the Council made a best interests' decision on Z's behalf. It decided it was not in Z's best interests to share the parts of the investigation report related to them with Mrs X. There is no evidence of how it reached this decision and it did not consult Mrs X to obtain her views.
27. The Council sent Mrs X its stage two complaint adjudication letter in April 2022. It said it agreed and accepted the investigation's findings on all of the complaints. However, it had decided it was not in Z's best interests to the share parts of the investigating officer's report containing Z's personal information. It attached the parts of the investigation report about the complaints raised on behalf of Y. The investigation upheld both these complaints and recommended the Council:
• apologised to Mrs X for the upheld complaints and for the significant delay completing the investigation;
• acted to ensure all files relating to Y were correctly stored;
• considered completing an audit to ensure records were being correctly stored and act to address any issues found;
• provide additional complaints awareness training for staff.
28. Mrs X was unhappy with the Council's best interest decision to refuse to share information with her about the investigation and findings relating to complaints involving Z. She also was unhappy with the outcome of complaints related to Y. She asked the Council to escalate the complaint to stage three.
29. The Council held the stage three panel in September 2022. During the panel hearing, the Council apologised to Mrs X for the upheld parts of complaint. It also explained how it had improved its record keeping. It said it was currently considering the recommendation about additional complaints training and this would be implemented soon.
30. The panel made several further recommendations including the Council:
• act to ensure family time remains central to children's care planning;
• write to Mrs X to explain what action it has taken to improve staff co-operation with statutory complaint investigations, and how it has improved its procedures to ensure actions were not missed when staff either left a service or moved to a different role;
• consider that Mrs X has told the stage three panel she has an LPA for Z. The panel said this should be considered and accepted as giving her authority to view complaint responses; and
• consider a financial remedy for lost family time with Mrs X and Y between February and August 2020, in line with our guidance on remedies.
31. The Council sent Mrs X its stage three adjudication letter. It said it accepted the panel's findings. It said some service improvements had already taken place and a named officer would oversee implementing the other actions.
32. Mrs X remained unhappy and complained to us.
33. In response to our enquiries, the Council said at the time of making the best interests decision, Mrs X did not hold an LPA for Z. It said Mrs X provided this to the Council in September 2022. It provided evidence of how it had improved its services since Mrs X's complaint.

My findings

The best interests decision

34. The officers who completed the mental capacity assessment were professionals involved with Z's care. They were appropriate people to make this decision. They followed the assessment process as set out in the Mental Capacity Act 2005 and reached the decision that Z did not have capacity to make the decision. There was no fault in how this decision was reached and so I cannot question this outcome.
35. Once it is established a person lacks capacity, any decision taken on their behalf must be in their best interests. As set out in the Act, the Council should have considered, and recorded its consideration of:
• whether Z had previously expressed a view about sharing their personal information with Mrs X;
• with their knowledge of Z, whether they felt Z would have wanted them to share the information with Mrs X;
• how Z may have considered the decision if they were able to do so.
36. It should also have recorded how it considered Mrs X's views. Although Mrs X did not have the LPA for Z at the time, she is their mother and had brought the complaints on Z's behalf. She has a clear interest in Z's welfare.
37. There is no evidence the Council considered these factors when reaching the best interests decision. This is fault. As there was fault in how the best interests decision was reached, this causes uncertainty as to whether the decision not to share the complaint investigation and findings with Mrs X was made in Z's best interests. The Council should re-take this decision considering all the relevant factors including, if it is practicable and appropriate to consult them, the views of:
• anyone named by Z as someone to be consulted on the matter in question or on matters of that kind;
• anyone engaged in caring for Z or interested in their welfare;
• Mrs X, as she now has a lasting power of attorney granted by Z; and
• any deputy appointed for Z by the court.

Compliance with recommendations

38. In its stage three adjudication letter, the Council said it accepted the stage three panel's findings and the recommendations.
39. I am satisfied the Council has acted to improve its record keeping. It also apologised to Mrs X during the stage three panel hearing, which she accepted. It has improved it children's care planning services and its complaints handling to have better oversight of timescales and to support early resolution.
40. However, it has not implemented all the recommendations as agreed. There is no evidence the Council has:
• provided additional complaints awareness training for staff, recommended both at stage two and by the stage three panel;
• reminded staff of their statutory duty to fully co-operate with statutory children's complaints investigations;
• re-considered Mrs X's request to view the full stage two investigation report, given she now has LPA for Z and should be involved in all best interest decisions;
• provided a financial remedy to Mrs X or Y for lost family time caused by the delay reviewing the risk assessment; or
• written to Mrs X to explain how it will improve its communication and complaints handling.
41. The failure to complete these actions is fault. It causes uncertainty about whether the Council has learnt from Mrs X's complaint or improved its services as it agreed. It also means personal injustice caused to Mrs X and Y remains unremedied.

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Agreed action

42. Within one month of the final decision, the Council will:
• pay Mrs X £600 to recognise the distress caused to her and Y by the lost unsupervised family time.
• re-take the decision about whether it is in Z's best interest to share their personal information contained within the stage two report with Mrs X. It should ensure it considers all relevant factors including Mrs X's views and Mrs X's LPA for Z when reaching its decision. It should then share its decision and reasons with Mrs X.
• If its revised best interests decision concludes it is in Z's best interest for Mrs X to see the stage two investigation report and findings, it should share the report with Mrs X no later than two weeks after the best interest decision.
• If it decides it is not in Z's best interests, it should signpost Mrs X to her right to approach the Court of Protection.
43. Within three months of the final decision the Council will:
• arrange the recommended additional complaints awareness training for relevant staff.
• remind staff of their statutory duty to fully co-operate with statutory children's complaints investigations.
• write to Mrs X explaining what action is has taken or plans to take, to improve its communication and complaints handling.
44. Within three months of the final decision it will also review its procedures for reaching best interest decisions, to ensure it:
• checks whether the person who lacks capacity has an LPA or deputyship in place before taking a best interest decision.
• considers the factors related to the person who lacks capacity, as set out in paragraph 16.
• consults with and considers the views of any other persons relevant to the decision, as set out in paragraph 17. It should ensure the views of those consulted and the Council's consideration of these views are appropriately recorded in each case.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused and improve Council services.

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Investigator's decision on behalf of the Ombudsman