Summary: We will not investigate this complaint about the Council’s failure to safeguard Mr B in 2014 - 2015. This is because further investigation by the Ombudsman could not make a finding of the kind Mr B wants. We will not investigate his complaint about the steps taken by the Council to restrict Mr B’s contact with it because there is not enough evidence of fault to warrant investigation.

The complaint

1. Mr B complains he was not safeguarded by the Council in 2014/15 and was a victim of financial abuse. Mr B says a tribunal says it has serious concerns about his ability to understand and the Council failed to properly reassess him when he moved to the area. Mr B says his Direct Payments (DP’s) do not cover his care needs. In addition, Mr B says the Council has restricted his contact with it without considering his disability.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, 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.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr B has asked the Ombudsman to consider the Council’s refusal to investigate because his complaints are about matters from seven or eight years ago. Mr B complained:
• no capacity assessment was completed in 2014/2015 when the Council was aware he had capacity issues; and
• he did not receive an adequate care package in 2014/2015, and did not have enough hours of support.
6. The Mental Capacity Act 2005 says a person must be presumed to have capacity unless it is established that they lack capacity. A person should not be treated as unable to make a decision:

• because he makes an unwise one;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; and
• before all practicable steps to help the person to do so have been taken without success.

7. Mr B says he lacks capacity and did so in 2014. By law it is not possible to say a person lacks capacity generally; the question of capacity is specific to what decision the person needs to make at the time. We could not therefore say, even after investigating, whether Mr B lacked or had capacity in 2014 or 2015 to make decisions about his finances. It is not possible to assess a person’s capacity so long after the event, and it is not our role to try. Nor could we say, therefore, the Council should reimburse costs or debts he incurred.
8. Mr B complained the Council has not considered his disabilities when restricting his contact with it.
9. The Council has explained to Mr B the reasons for the restrictions, advised him it would review this, and reviewed the restrictions. It says, and has provided us with evidence from call recordings, Mr B has continued to be rude and abusive towards its staff, so it has advised him he can only email a named contact person. While I recognise Mr B is unhappy with this, there is not enough evidence of fault in what the Council has done to warrant an ombudsman investigation.
10. People who work in the public service are entitled to reasonable courtesy and respect and not to suffer abuse and rudeness from members of the public. In the circumstances, the Ombudsman would not criticise the actions of the Council towards Mr B.
11. The Council says Mr B has refused to engage with the process of assessing his needs for care and support, so his comments have not been included in its assessment. However, if there are inaccuracies or omissions in the current assessment Mr B is unhappy with, he will need to engage, politely and reasonably, with the Council via his named contact person and say what these are so the Council can either amend the assessment or explain why his comments would not alter the decision.
12. Mr B says the Council has not considered the effects of his disability on his behaviour towards officers. I recognise Mr B’s condition may affect his ability to process information and he may need support with doing so. I also recognise his difficulties may cause him some frustration which may tip into anger. But I cannot agree those things justify the abusive language and personal attacks Mr B uses on the telephone. His behaviour has clearly been unacceptable and there is no fault in the Council taking the same view.

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Final decision

13. We will not investigate Mr B’s complaint because further investigation by the Ombudsman could not add to the Council’s responses or make a finding of the kind Mr B wants, and there is not enough evidence of fault in the Council’s restriction on the ways Mr B can contact it to warrant us investigating.

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Investigator's decision on behalf of the Ombudsman