Summary: We will not investigate this complaint about adult social care in a nursing home. This is because we could not add to the previous investigations by the organisations involved, further investigation would not lead to a different outcome and we cannot achieve the outcome Mrs E wants, which is for Mr F to move, because a court has directed where he should live.

The complaint

1. Mrs E is not happy with actions taken by the Council, or by a Care Provider on its behalf, about the care of her husband Mr F. Mrs E says the Council excludes her from decisions, and restricts her contacts and communications with Mr F, which takes away her liberty as his wife and impacts on their right to a family life. Mrs E would like Mr F to move to another care home.

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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’.
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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:

• 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Court of Protection makes decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made. There was a dispute about where Mr F should live and he did not have capacity to make the decision, so the Court of Protection decided he should live at New Thursby Nursing Home (the Care Provider).
9. Mrs E was happy with the previous placement, felt Mr F was improving there, and did not want him to move.
10. Much of Mrs E’s complaint is about matters that happened before the court’s involvement, which are late complaints to the Ombudsman as explained in paragraph three. I can see no good reason to investigate these issues now.
11. The Ombudsman cannot consider what happened in court, or the decision the court made, even though Mrs E disagrees with it and is impacted by it. Mrs E says she used to visit her husband every day but can no longer do so because of the distance and cost.
12. Mrs E is concerned that a ‘statement of expectations’ limits her relationship with her husband, for example she cannot feed him or talk to him about his previous placement. Mrs E says in her complaint that this statement was authorised by the judge, and therefore it is not something the Ombudsman can consider.
13. The Ombudsman can consider concerns Mrs E has about Mr F’s care support from the Care Provider on behalf of the Council. Mrs E raises concerns about Mr F’s room being on the first floor so he must use the lift, and she worries what would happen if the lift broke down. Mrs E says Mr F is isolated, he does not get many visitors and spends much of the day alone in his room. Mrs E says Mr F used to enjoy watching the television, but it is positioned in such a way that he cannot watch it as he cannot turn himself.
14. I cannot see that Mrs E has raised all these concerns with the Care Provider. Mrs E made a complaint to the Council, which was shared with the Care Provider. Both of those bodies investigated and gave a thorough response to Mrs E. But that complaint did not include the location of Mr F’s room, or that he spends much time in bed or in his room. It did include Mrs E’s concern about the television. The Care Provider said it positions Mr F so he can watch the television in his room or in the lounge, but mostly Mr F now prefers to listen to the radio and can get agitated when the television is on. Therefore there is no evidence of a significant injustice to Mr F if he is choosing not to watch the television. Even if Mrs E and Mr F like to watch the television together, that is not evidence that Mr F wishes to do so when alone.
15. Mrs E is concerned about how to raise any concerns because she says she has had conflicting information. The Council was clear in its complaint response that Mrs E should raise any concerns with the matron at the care home. The statement of expectations says Mrs E should not make any derogatory or unacceptable remarks to the matron or care staff that will put Mr F’s placement in jeopardy. And so makes Mrs E worry about what she can or cannot say. Mrs E is not restricted in raising concerns she has about Mr F’s care support and should raise them with the matron at the relevant time. All parties should work together in Mr F’s best interests. The care home will involve the Council if required, for example if Mr F needs a review or reassessment of his care support.
16. Ultimately Mrs E wants Mr F to move to another care home, where she can visit more easily. This is not an outcome the Ombudsman can achieve, as the Court of Protection has directed where Mr F should live.
17. Although some tensions between Mrs E and the Council and Care Provider, there are no controls that restrict her right to a family life with her husband. While she cannot visit every day as she used to, the location of the care home was decided by the court. The ‘statement of expectations' does say not to discuss her concerns or feelings about the move with Mr F. But this is so as not to upset him, and to allow him to settle, so is a limit in Mr F’s best interests and does not prevent husband and wife conversing about anything else. The court decided Mr F should move, and so the involved parties cannot change that unless they take the matter back to court.

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Final decision

18. We will not investigate Mrs E’s complaint because we could not add to the previous investigations by the organisations involved, further investigation would not lead to a different outcome and we cannot achieve the outcome Mrs E wants, which is for Mr F to move.

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Investigator's decision on behalf of the Ombudsman