Summary: We will not investigate this complaint about adult social care and mental capacity assessment. This is because it is unlikely we would find enough evidence of fault and there is no worthwhile outcome we could achieve as the person receiving care support has since died.

The complaint

1. X says the Council made an unlawful decision about Y’s care and accommodation. X says the Council should not rely on the mental capacity assessment because Y could not properly take part in it. X says this denied Y their liberty and affected their physical and mental health. X wanted Y moved to a care home of their choice.

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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) and 34C(2), as amended)

3. Y has died; we have accepted X as a suitable representative.
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
• 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, or
• there is no worthwhile outcome achievable by our investigation.

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

5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.

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How I considered this complaint

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

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My assessment

8. The Council was responsible for meeting Y’s adult social care needs. The Council completed a mental capacity assessment to see if Y could make decisions about his care and accommodation and decided he could not. X says the Council cannot rely on that assessment because Y had an infection and was not wearing hearing aids. The officer who completed the assessment says there was nothing to suggest Y could not properly hear or take part. The recorded document states Y could communicate clearly and consistently during the assessment. The Ombudsman would rely on this recorded evidence so is unlikely to find enough evidence of fault even though X disagrees.
9. The Ombudsman cannot say the outcome would be different had anything happened differently. The Council may have made the same decisions about Y’s care and accommodation. It is unlikely an Ombudsman investigation could find the Council’s actions were the sole cause of Y’s decline in health. There is also no worthwhile outcome we could achieve for Y as he has since died.

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Final decision

10. We will not investigate X’s complaint because although we understand X’s upset there is no worthwhile outcome we could achieve. We cannot achieve the outcome X originally wanted, a change of care home placement. We would rely on the same evidence as the Council so it is unlikely an Ombudsman investigation would find enough evidence of fault, add to the Council’s response, or reach a different outcome.

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Investigator's decision on behalf of the Ombudsman