Date of decision: 23 February 2026
Summary
A mother complained that Birmingham Council delayed and then wrongly refused her request to have contact with her adult child, who had long been in care and now lives in supported accommodation.
What happened
The complainant, Ms X, has an adult child, Y, who was placed in long‑term foster care when Y was very young and now lives in supported accommodation arranged by the Council.
In April 2025 Ms X contacted the Council to ask if she could visit Y and also complained that earlier requests for contact, made since 2023, had not been acted on. The Council told Ms X it would allocate a social worker to follow up her new request and to explore whether Y could consent to contact, signalling that Y’s mental capacity and wishes would be central to any decision.
In early May 2025 the Council sent a formal complaint response to Ms X, accepting that a social worker had failed to respond to her April 2023 request to meet Y and apologising for that earlier omission, while explaining there were no further records of contact from her after that date. The Council confirmed it had now allocated a social worker to progress the fresh 2025 request, and records showed that the social worker tried to phone Ms X several times but her calls were not answered and there was no facility to leave a voicemail.
In late May 2025, Ms X contacted the Council again, explaining she was still waiting to hear from a social worker and that her phone would not accept withheld numbers, which had likely blocked earlier calls. The allocated social worker then emailed Ms X, explaining they needed to be careful how they approached the issue of contact and that it might require a mental capacity assessment of Y before any decision could be made. Ms X replied that she would accept a structured, supervised reintroduction and confirmed she was content to wait for a mental capacity assessment of Y.
The social worker subsequently spoke with Ms X by telephone and recorded that they explained they would carry out a review with Y before making any decisions. The notes show the social worker discussed the possibility of indirect contact such as photos and letters, but emphasised that Y was an adult and could choose whether to have contact with Ms X, and that the social worker’s role was to support Y and identify Y’s wishes and needs. The social worker also told Ms X that, if she was unhappy with the eventual outcome, she could consider taking legal proceedings to challenge the decision.
In mid‑June 2025 Ms X contacted both the Council and Y’s supported accommodation again, pressing them to progress the contact request and saying that if they did not do so she would start formal legal action. The Council replied that it was reviewing the situation but needed to ensure Y’s wishes were properly considered and it highlighted that previous family contact had been thought to have adversely affected Y’s health and wellbeing, so it had to be cautious about how it approached the request.
Later in June 2025 the Council completed a mental capacity assessment of Y and, following that, made a best interests decision that contact with Ms X should not be permitted at that time.
The decision record stated that this position should be reviewed periodically in light of any changes in Y’s wellbeing or cognitive functioning, indicating the restriction on contact was not necessarily permanent. The Council then informed Ms X of the decision not to agree to contact and advised her to seek legal advice if she disagreed, noting that contact issues for adults lacking capacity may ultimately fall to the Court of Protection.
What was found
The Ombudsman treated the earlier 2023 inaction as a late matter it would not investigate, but found that from April 2025 onwards the Council acted without significant delay in acknowledging the new contact request, allocating a social worker and communicating with Ms X. The records showed the social worker clearly explained that any decision depended on a mental capacity assessment, Y’s wishes and feelings and an assessment of Y’s best interests, and then arranged and completed that assessment.
The Ombudsman emphasised that the organisation’s role is to scrutinise process, not to appeal the substance of decisions, and concluded that the Council had applied the principles of the Mental Capacity Act 2005 appropriately when deciding that contact was not in Y’s best interests at that time.
Because there was no identified fault in the way the Council reached its decision, the Ombudsman could not challenge the outcome, and therefore did not recommend any remedy or financial compensation for Ms X. The Ombudsman noted that, as the Council had already advised, if Ms X continues to disagree with the decision about contact, the proper route would be to seek legal advice with a view to raising the matter in the Court of Protection.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s analysis treats the contact dispute almost entirely as a Mental Capacity Act and best interests question, without clearly distinguishing between Care Act public law duties and the private law framework of the Mental Capacity Act, or whether restriction of contact is a matter for best interests decision-making, in theory or in the real world.
Whilst the Mental Capacity Act provides a defence and structure for doing things to or for a person without consent, in terms of civil law, it is not clear to what extent that failures to follow its provisions or the edicts in its accompanying Code can or do amount to breaches of Care Act public law duties, which have their own statutory purposes and means of challenge. Community care case law and public law principles therefore suggest that, in a situation like this, there should be an explicit analysis of which aspects of the Council’s response are governed by Care Act assessment, planning and review duties, and which are governed by the Mental Capacity Act’s best‑interests framework, rather than treating careful Mental Capacity Act process as sufficient in itself to answer all public law questions about the decision‑making pathway.
We do not think that restriction of contact with a family member is something that in practice a Council (or, indeed, anyone other than a welfare attorney power holder, in fact) can purport to do under the auspices of best interests decision-making.
Nobody, not even the commissioning council, or ICB, can contract with a care provider for physical management of the ordinary house, or of the relationship between the clients, as a person or a group of strangers who have just been organised into being house sharers, because the Care Act does not provide any means for the council to acquire the responsibility for managing (and thus contracting for the management of) the building, in the first place.
Even if a Provider’s stance is that the house is a workplace for their staff, where they must manage the risks, especially if the contract is for 24 hour access to supervision. But that is still subject to the tenants’ proprietary rights and the deputy’s, if a finance & property deputy has signed the tenancy.
The deputy would have visiting rights for themselves, that cannot be gainsaid, other than by forcing them out of the role. They can control access to the property as long as it doesn’t amount to prohibition of contact of a named person, because s20(2) of the MCA says that they cannot be GIVEN that extent of power (whereas a lasting power of attorney COULD, we think, be worded to go that far, although this has not been litigated, as far as we know).
We don’t know of any Care Act function that can be used to stop a person from trying to visit, therefore, by a Council.
Community care law on assessment and planning stresses that when a council is contemplating a significant change to a person’s lived arrangements or relationships, it must assess the impact of the person’s needs on all aspects of wellbeing, including domestic, family and personal relationships, and record the outcomes the adult wishes to achieve, before moving to eligibility and planning. The Ombudsman does not explore whether the “review with Y” properly identified and recorded Y’s needs and desired outcomes around family relationships, or whether the decision on contact was in fact taken in advance of, or separately from, an assessment of how Y’s needs for family relationships and emotional security should feature in the care and support plan.
Second, there is a legal issue about the proper scope of Mental Capacity Act assessments and best‑interests decision‑making in the Care Act pathway. Community care law materials emphasise that the Mental Capacity Act grew out of the defence of necessity to justify acts that would otherwise be civil or criminal wrongs, such as touching, restraining or depriving someone of their liberty, and that not every Care Act function requires a Mental Capacity Act assessment. Knocking on a door of someone’s tenanted accommodation is not a civil law wrong, and the care provider has no actual authority to prevent admission if the person is admitted!
We grant, of course, that if someone is lacking in capacity, they may be vulnerable to exploitation or coercive control if people knock on the door and talk a good talk. So, in practice, we accept that it is not inappropriate to ask a potential visitor who wishes to resurrect a relationship to agree to a stepped process that takes that matter slowly. Giving someone advice that they need to go to the Court of Protection if the suggested process doesn’t suit them, though, overstates the right/power or authority of the Council, once it has made the most of the implications of a person in supported living, through a tenancy, we would have to say. A similar example comes to mind: purporting to a care home visitor that the police will be called if they turn up to see their loved one, overstates the extent to which it is wrong to do that. It MAY be wrong, if the Care Home Management has used its visiting management powers, or if a breach of the peace is objectively contemplated based on prior behaviour, but it is not unlawful, in a criminal sense!
The Ombudsman records that the Council completed a capacity assessment and then a “structured best interests decision”, but does not interrogate the content of that process: for example, whether the assessor properly distinguished between Y’s capacity to decide about contact and Y’s anxiety about family relationships, whether less restrictive options such as carefully managed or indirect contact were genuinely weighed with evidence, or whether Y’s wishes and feelings about their mother and wider family were explored over time rather than inferred from past distress.
Many years ago, Kent was judicially reviewed over a similar decision in a public law case called Marston (unreported). It was held that Guardianship created a statutory best interests decision making power as long as the holder did not exercise power in a totalitarian fashion. This was BEFORE the Human Rights Act and before the Mental Capacity Act, please note.
These days, HHJ Buckingham’s judgment in SR, 2018, EWCOP 36 illustrated the consequences of ignoring the distinction between a relative making a best interests decision, and the local authority imposing contact restrictions with no lawful authority at all — no court order, no s.16 declaration, nothing other than the Care Act — and the judge was clear the matter should have been referred to the Court when disagreement arose. The case confirms, in other words, that without a court order the legal ice is very thin.
Public law principles require that where a best‑interests decision curtails a core aspect of private life, such as all contact with family, the authority should be able to show that it considered and recorded the pros and cons of alternative, less restrictive approaches than a simple prohibition, etc.
The Ombudsman’s decision does not say whether Y had any advocate or other supporter independent of the accommodation provider and the Council, nor whether the Council considered Y’s advocacy entitlements when arranging the ‘review’ and best‑interests meeting. Public law principles on participation stress that in high‑stakes decisions about relationships and possible long‑term separation from family, the authority should be able to demonstrate how it maximised the adult’s involvement, what support was offered, and why any advocacy duty was or was not engaged. This gap is not explored, even though the outcome is a restriction on resumption of contact within the sphere of family life.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Birmingham City Council (25 005 798) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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