• The complaint
• What I have investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Miss X complains the Council has failed to let her brother return to his home with his mother and has failed to help him attend church, in line with his wishes. The brother has the capacity to decide where he lives and wants to remain in a care home. However, the Council has failed to ensure he receives help attending church, if that is what he wants to do. The Council needs to make sure the brother’s Care Home offers help attending the family church and documents any refusal.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has:
   • failed to let her brother return to his home with his mother; and
   • failed to help him attend church, in line with his wishes.

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What I have investigated

2. I have investigated the complaint about where Mr Y lives and the failure to help him go to church.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. Before investigating a complaint we must normally be satisfied a council has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), as amended)

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How I considered this complaint

7. I have:
   • considered the complaint and the documents provided by Miss X;
   • discussed the complaint with Miss X;
   • considered the comments and documents the Council has provided in response to my enquiries; and
   • shared a draft of this statement with Miss X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

8. Miss X’s brother, Mr Y, lives in a Care Home. He previously lived with his parents until his father died in 2016.
9. Mr Y’s family would like him to return to the family home. They say the Care Home is preventing him from going to church to practice his religion. They complained to the Council about this in December 2018
10. When the Council replied in January 2019 it said:
    • Mr Y had asked the Council to include help attending church in his care and support plan;
    • but when prompted he repeatedly asked those caring for him to postpone attendance to the following week;
    • it would ask his Social Worker to make sure the offer of support attending church remained in place;
    • it had assessed Mr Y as having capacity to decide where he lives in January 2018;
    • in March 2018, with the help of an Independent Advocate, Mr Y said he wanted to remain at the Care Home;
    • he had reconfirmed this to his Social Worker in December 2018;
    • it continued to commission independent advocacy for Mr Y, so he can express his views about his accommodation and care arrangements.
11. In April 2019 Mr Y’s mother told the Council she disagreed with its response. She did not accept it was taking her son’s views seriously. She said she wanted him to move back home so she could care for him with help from a care agency. She said this would enable him to be with his family and practice his faith.
12. The Council’s records for Mr Y confirm:
    • what it has said about him having the mental capacity to decide where he lives;
    • his wish to remain living at the Care Home;
    • his March 2018 care and support plan said he wanted to go to a church near his care home and staff would ask him when he was ready to do this and help him go;
    • in July 2019 Mr Y said he wanted to attend his family church. The Council agreed the Care Home would help him do this and his mother agreed to pay for private transport.
13. However, the Council has provided no evidence to support the claim the Care Home has offered to take Mr Y to church and he has refused this.

Is there evidence of fault by the Council which caused injustice?

14. There is no evidence of fault by the Council over its handling of Mr Y’s decision to remain living at the Care Home. It has assessed his capacity to decide where he lives in line with the Mental Capacity Act 2005. This shows he has the capacity to make this decision himself. The Council has used an Independent Advocate to make sure Mr Y’s decision reflects what he wants and not what others may want for him.
15. However, the Council cannot evidence Mr Y being offered and refusing help to attend church. That is fault by the Council. It raises the possibility Mr Y has not received support in line with his care and support plan. That is an injustice to Mr Y.

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Agreed action

16. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Care Home, I have made recommendations to the Council.
17. I recommended the Council within four weeks:
    • ensures staff at the Care Home offer Mr Y help attending the family church and clearly record any refusal.

The Council has agreed to do this.

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Final decision

18. I have completed my investigation as the Council has agreed to take the action I recommended.

Parts of the complaint I did not investigate

19. Because of the restriction in paragraph 6 above, I have not investigated Miss X’s complaint about the charges for her brother’s attendance at a day centre and whether he goes.

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Investigator's decision on behalf of the Ombudsman

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