London Borough of Haringey (20 008 359)

Category : Adult care services > Assessment and care plan

Decision : Closed after initial enquiries

Decision date : 26 Mar 2021

The Ombudsman's final decision:

Summary: Ms X’s solicitor complained about issues regarding Ms X’s adult son, Mr Y, who has care needs because of his disabilities. We cannot and should not investigate the complaints about assessment of Mr Y’s care needs, care standards and safeguarding issues because of past and current Court of Protection proceedings. We will not investigate the complaint about funding as this is still being considered through the Council’s complaints procedure.

The complaint

  1. Solicitors complained on behalf of Ms X about issues regarding her adult son,
    Mr Y. The complaints were that the Council:
    • in November and December 2019, failed to assess Mr Y’s needs and issue a care plan as it said it would, failed to provide the direct payments funding it agreed at the same time and, since then, failed to provide evidence of an alleged overpayment;
    • failed to ensure Mr Y received adequate care in the care home where he was placed in December 2019 and failed to investigate Mr Y’s harm and injuries through safeguarding procedures; and
    • failed to investigate a whistleblower disclosure about practices at the care home including falsification of records and abuse of Mr Y and others.

As a result, Ms X considers Mr Y has had inadequate care at the care home and she has lost out on funding she should have received while caring for him at home.

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The Ombudsman’s role and powers

  1. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  2. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  3. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and to reply. (Local Government Act 1974, section 26(5)) We usually expect people to have exhausted a Council’s complaints procedure before we consider whether to investigate their complaint.

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How I considered this complaint

  1. I read the documents sent by Ms X’s solicitor and discussed the complaint with the solicitor. I asked the Council to provide details of Ms X’s court proceedings which may relate to the complaint and read those details. I confirmed the status of Ms X’s current complaint being investigated through the Council’s complaints procedure.
  2. Ms X and her solicitor have had an opportunity to comment on my draft decision. I considered their comments before making this final decision.

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What I found

  1. Ms X is Mr Y’s health and welfare deputy. Mr Y has disabilities and cannot decide for himself where he should live and the care he needs. Until 2019 Mr Y had lived at home for most of his life.
  2. In November 2019 Mr Y returned home from a period in hospital. Ms X employed carers to support Mr Y. She expected direct payments from the Council to cover the costs. She said the Council did not provide the funding for the carers it had agreed so she had to use a substantial amount of her own money. Ms X has been in dispute with the Council about the direct payments but has not yet completed the Council’s complaints procedure about this.
  3. In December 2019 Mr Y went into hospital again. Mr Y was then discharged to a care home against Ms X’s wishes. Ms X quickly applied to the Court of Protection for Mr Y to return home. Ms X provided details to the Court of her concerns about Mr Y’s care and assessment as part of this process.
  4. The Court of Protection did not order Mr Y’s return home but made a series of orders to help ensure Mr Y moved to other more suitable accommodation. Ms X made the Court aware of her safeguarding concerns. Mr Y has still not moved on but the Court has ordered that he stays at the original care home until a more appropriate placement can be arranged.

Analysis

  1. Many of the issues in the complaints about the standard of Mr Y’s care and the Council’s investigation of any incidences of harm and injury are ones that the Court of Protection has considered in its decision-making about where Mr Y should live. We cannot investigate matters the Court has already considered or information the Court has relied on to make its decisions.
  2. We should not investigate other issues about standards of care or safeguarding not directly considered by the Court already. These issues are inextricably linked with the Court’s proceedings and it is reasonable to have expected Ms X’s solicitor to have raised them during the Court proceedings.
  3. It is premature for us to investigate the complaint about direct payments while the Council is still investigating this through its complaints procedure. If Ms X is unhappy with the eventual outcome of the complaints procedure we will consider a complaint from her then.

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Final decision

  1. We cannot and should not investigate most of this complaint. This is because we cannot investigate a complaint about the start of court action or what happened in court and it is reasonable to have expected Ms X’s solicitor to have raised issues about care standards and safeguarding during the Court proceedings. We should not investigate the part of the complaint about direct payments funding while this is still being considered through the Council’s complaints procedure.

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Investigator's decision on behalf of the Ombudsman

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