Summary: We will not investigate Mr D’s complaint about adult social care support when the person using the service, his relative Mr E, came home from hospital. The Council correctly assessed and offered support which Mr E declined. Mr D had been clear he should be present, but we cannot say the outcome would be different. Mr E did not ask for Mr D to be present or say the assessment could not take place without him.

The complaint

1. Mr D says the Council failed to tell him when his relative, Mr E, was discharged from hospital so Mr D could not be there in time to support Mr E. The Council completed an assessment with Mr E and offered support which Mr E refused. Mr D says if he had been there then Mr E would have had care arranged. Mr E could not manage and paid for private residential care, which Mr D says the Council should refund.

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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 E has died; we have accepted Mr D as a suitable person to raise this 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
• further investigation would not lead to a different outcome.

(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)

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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.
8. I considered the Mental Capacity Act 2005 and associated statutory guidance.

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My assessment

9. Mr D says the Council agreed to tell him in advance when Mr E would be discharged from hospital, so he could travel and be present to support Mr E. The Council does not confirm whether it agreed to this. If it did agree and did not do it, then it has caused Mr D frustration.
10. The Council’s responsibility was to assess Mr E’s care and support needs, and to offer any necessary support. The Council followed the correct process to assess Mr E’s needs and offer support and decided Mr E had capacity to make his own decisions. Although Mr D says the outcome would be different if he had been there to support Mr E, we cannot say that would be the case. Mr E has since died so we cannot speak to him about his wishes. I appreciate this leaves Mr D with frustration and uncertainty, but this is not significant enough to justify an investigation when it is unlikely we would achieve a different outcome.
11. Under the Mental Capacity Act, you are presumed to have capacity to make your own decisions unless proven otherwise. Mr E was presumed to have capacity and there is no evidence to suggest fault in this decision. I cannot say the outcome would have been different if Mr D had been present. Mr E could make decisions which Mr D thought were unwise. Mr E did not say the assessment could not take place without Mr D present.
12. Mr D and Mr E did not go back to the Council before Mr E moved to residential care. This was a decision Mr E, and his family, chose and so the costs of the privately arranged residential care are not a direct result of the Council’s actions.

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Final decision

13. We will not investigate Mr D’s complaint because there is not enough evidence of fault causing a significant injustice to justify our involvement. It is unlikely an Ombudsman investigation would achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman