Summary: We will not investigate this complaint about an adult social care best interest decision. It is unlikely we will find evidence of procedural fault; the information available implies the Council followed the correct process. But even if there was fault, we cannot achieve a worthwhile outcome as the person affected has since died.

The complaint

1. Ms E says the Council made the wrong decision when it decided her relative, Mr F, could return home after a long period living in a care home. Ms E was worried the move would cause a decline in Mr F’s health. Ms E felt emotionally drained and had to rush to get items to enable Mr F to return home.

Back to top

The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

3. Mr F has died since the issues complained about. Ms E is a personal representative of his estate and is a suitable representative to raise a complaint.
4. We investigate 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’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused significant enough injustice to the person who complained to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.
8. I considered the Mental Capacity Act 2005 and associated statutory guidance.

Back to top

My assessment

9. It is not the Ombudsman’s role to decide what was in Mr F’s best interest (whether he should have stayed at the care home or return home). The Ombudsman looks at whether there was any fault in the process the Council followed to make its decision.
10. Under the Mental Capacity Act if a person cannot decide for themselves then the Council must decide in their best interests. The Council held a meeting, in which Ms E and Mr F were present. The Council considered Mr F’s consistent wish was to return home. The Council must take account of the least restrictive option, which in this case would be returning home. The Council considered the views of relevant people and professionals in Mr F’s life. The Council therefore considered the correct process in law and guidance to decide Mr F should move home. I appreciate it did not work out and Mr F shortly moved back into a care home, but that does not mean the decision was wrong.
11. Even if there was procedural fault, the Ombudsman can no longer provide any remedy to Mr F for any impact on him. While it might have felt rushed and stressful for Ms E, this was part of her role to support Mr F rather than because of fault of the Council. I do not therefore consider there is a sufficient injustice to justify an Ombudsman investigation or any worthwhile outcome to achieve.

Back to top

Final decision

12. We will not investigate Ms E’s complaint because there is not enough evidence of fault or significant injustice to Ms E to justify an investigation. It is unlikely we would add to the Council’s investigation or achieve a different or worthwhile outcome.

Back to top

Investigator's decision on behalf of the Ombudsman