The Ombudsman's final decision
Summary: We will not investigate Ms D’s complaint about the Council’s failure to safeguard her late mother, Mrs E, prior to her death in 2014. This is because we would not be able to say Mrs E lacked capacity to make her own decisions at the time or make a finding of the kind Ms D wants.
The complaint
Ms D complained her mother, Mrs E was not properly safeguarded by the Council from her husband who was abusive and controlling. Ms D says the Council’s failure to recognise Mrs E was a victim of domestic abuse put her at a greater risk of physical, emotional, and financial abuse which Ms D says contributed to her decline in health and led to her death. Ms D says she only learned of Mrs E’s death in 2021, when she discovered following access to Mrs E’s health records and bank statements, the Council and other professionals had been misled and manipulated by Mr E. Ms D says this has been very distressing for the family and the Council has failed to give her access to Mrs E’s case records. Ms D says although Mrs E would have been deemed to have capacity, due to her complex health needs and being housebound, she was vulnerable and at risk. Ms D wants answers to why Mrs E was not protected, what checks were in place to safeguard her from abuse and a full investigation into what occurred during this period.
The Ombudsman’s role and powers
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 provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
While it is understandable Ms D was distressed when finding out Mrs E had died eight years previously, and upon gaining access to records was concerned she was not properly safeguarded, it is not our role to provide her with the answers she seeks.
The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that s/he lacks capacity. A person should not be treated as unable to make a decision: Because he makes an unwise decision.
Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
Before all practicable steps to help the person to do so have been taken without success.
We could not say Mrs E lacked capacity to make the decisions she made prior to her death in 2014. We could not make the finding Ms D has made that the Council’s failure to safeguard Mrs E contributed to her death. Even if we investigated and found evidence of fault we could not now provide Mrs E with a remedy for any injustice caused by the Council’s actions as she is now deceased.
Ms D says she wants access to information the Council is refusing to give her. Ms D can ask the Information Commissioner’s Office (ICO) to consider whether she should have the information she has requested, and it would be reasonable for her to do this.
Final decision
We will not investigate Ms D’s complaint because we would not be able to say Mrs E lacked capacity to make her own decisions at the time or make a finding of the kind Ms D wants.
Investigator's decision on behalf of the Ombudsman