Cumbria County Council (19 012 119)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 11 Feb 2021

The Ombudsman's final decision:

Summary: we discontinued our investigation into the complaint the Council failed to properly consider the complainant’s mother’s best interests when placing her in a care home because the complainant had recourse to an alternative remedy. The Council has provided a remedy agreed through an out of court settlement placing the matter outside our jurisdiction.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council failed to follow proper procedures when deciding to place his mother Mrs Y in a care home in 2018. Mr X says the Council did not properly consider providing Mrs Y with a care package at home.
  2. Mr X says the Council’s decision to place Mrs Y in a care home some distance from her home caused great distress for her and her family affecting Mrs Y’s health and well-being.
  3. Mr X wants the Council to ensure staff receive training and supervision to ensure they follow relevant statutory guidance and consider all relevant information when deciding where to place vulnerable people.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  2. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  3. The Ombudsman will not investigate or continue an investigation if the Council has already provided a reasonable remedy.
  4. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

  1. In considering this complaint I have:
    • Spoken with Mr X and reviewed the information presented with his complaint;
    • Put enquiries to the Council and considered its response including details of the out of court settlement offered by the Council and accepted by Mr X under the Civil Procedure Rules;
    • Taken legal advice on whether we can continue with an investigation;
    • Shared with Mr X and the Council my draft decision and considered any comments received before making this final decision.

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What I found

  1. Mrs Y lived with Mr X who supported her until she entered hospital and then a care home in September 2018. Mrs Y remained in the care home until September 2019 when she sadly died.
  2. Mr X complained to the Council about its handling of the best interest decisions and depriving Mrs Y of her liberty by placing her in a care home. The Council accepted procedural faults and offered an apology and a payment of £250. Mr X rejected that offer and through his solicitors set out his claim in a letter of claim.
  3. In response to the letter of claim the Council offered under the Civil Procedure Rules Part 36 a settlement which included a payment of £2,500. This would mean Mr X did not have to continue with his claim if he accepted it. Mr X accepted the offer through his solicitors and the Council has paid the claim.
  4. The settlement under the Civil Procedure Rules meant Mr X did not have to follow up his letter of claim through the full court procedure.

Analysis

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. Mr X set out a claim and received an offer of settlement from the Council under Part 36 of the Civil Procedure Rules. In setting out his claim or in any subsequent claim Mr X could have included issues about which he has since lodged a complaint with us. Mr X had legal advice in setting out his claim.
  2. This suggests Mr X had an alternative legal remedy available to him. I find it would not be unreasonable to expect Mr X to use that remedy had he not received and accepted the settlement offered by the Council.

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Final decision

  1. I am discontinuing the investigation because the available alternative remedy used by Mr X places the complaint outside my jurisdiction.

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Investigator's decision on behalf of the Ombudsman

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