Summary: Mr X complains about the hospital discharge arrangements for his mother. He also complains about inadequate considerations for Deprivation of Liberty Safeguards and Continuing Healthcare for his mother. We will not investigate the events surrounding the hospital discharges as these complaints are late. We will not investigate the other complaints because the organisations have already accepted fault and provided appropriate remedies. We are therefore unlikely to achieve more.

The complaint

1. Mr X complains about the care of his mother, Mrs Y, by Torbay Council (the Council) and Torbay and South Devon NHS Foundation Trust (the Trust). Mr X’s complaints include:
• a breach of privacy and dignity by hospital staff;
• inadequate arrangements and information provided on Mrs Y’s discharge from hospital;
• failures with the Continuing Healthcare (CHC) process since Mrs Y’s hospital discharge; and
• failures with the Deprivation of Liberty Safeguarding (DoLS) process.
2. Mr X says the failings have impacted his mother’s dignity and is not in a care setting that is appropriate to meet her needs, in particular nursing care. He says this places Mrs Y at heightened risk. Mr X also says the failings have caused him upset and distress.
3. Mr X wants an investigation into the failed hospital discharges, CHC procedures and DoLS decisions. He also wants Mrs Y to be moved to a nursing home.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the bodies, or
• it would be reasonable for the person to ask for a review or appeal.
  (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
6. 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 an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended and Health Service Commissioners Act 1993, section 4(1b))

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How I considered this complaint

8. I considered evidence provided by Mr X, the Council and the Trust as well as relevant law, policy and guidance. The Trust and the Council have an agreement under section 75 of the NHS Act 2006 for the Trust to manage adult social care and complaints about this on behalf of the Council.

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What I found

Relevant guidance and policies

CHC Assessment

9. CHC is a package of care arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. Usually, the first step in assessment is for a health or social care professional to complete a CHC Checklist.
10. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full assessment. This assessment is completed using a decision support tool (DST). The DST recommends whether a person is eligible for CHC or for NHS-funded nursing care.

Mental Capacity Act

11. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. The MCA starts by presuming individuals have capacity unless there is proof to the contrary.

Deprivation of Liberty Safeguards (DoLS)

12. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.
13. The Court of Protection can consider conflicts about a deprivation of liberty.

Brief background

14. Mrs Y went into to hospital in late 2022. The hospital discharged her home in December 2022. However, she needed to return to hospital soon after. When Mrs Y left hospital, she moved into a residential care home (the Home). The Council completed a CHC Checklist. Mrs Y did not meet the criteria for a full assessment (DST).
15. In June 2024 Mr X asked the Council to carry out a CHC Checklist. The Council agreed and arranged this soon after. However, due to concerns about how the Council completed this, a manager visited Mrs Y in August 2024 to complete a new CHC Checklist. This did not meet the criteria for a DST.
16. Mr X complained to the Council in September 2024. This included concerns about the CHC Checklists and hospital care in 2022 and 2023. The Trust responded to the complaint on behalf of both organisations in April 2025.
17. In February 2025 a consultant psychiatrist completed a mental capacity assessment for Mrs Y. This found Mrs Y could not understand or make decisions about her care and accommodation. The Council started the DoLS process. As part of this, it appointed a paid representative for Mrs Y.
18. Mr X made a further complaint to the Council in June 2025. This included concerns about the DoLS. The Council responded in September 2025. Mr X then brought his complaints to the Ombudsmen.

My assessment

19. The complaints about hospital discharges and associated events in 2022 and 2023 are late. This includes the initial CHC Checklist. Mrs Y or Mr X did not make a complaint about these matters to the Trust or the Council until September 2024 and did not complain to the Ombudsmen until 2025. They would have been aware of the issues in 2023 and could have complained to us sooner.
20. The complaints about the CHC Checklists completed in June and August 2024 are also slightly late, but I am satisfied there were good reasons for this. Mr X was still following the complaints process with the Council and the Trust. He complained to us soon after the response was sent. As there was no unreasonable delay in bringing these complaints, I consider we can consider these issues.

CHC Checklist

21. Mr X complains the Council did not follow the correct process and that this meant his mother’s CHC Checklist was flawed. He says staff at the Home completed the CHC Checklist, but a social worker signed it.
22. The Council has accepted fault with how this CHC Checklist was completed. It apologised to Mr X for the anxiety caused by the error. It also arranged for a manager to complete a further CHC Checklist soon after. I consider this remedied the injustice from the wrongly completed CHC Checklist.
23. However, the Council recognised it did not arrange for Mrs Y to have a representative present during the CHC Checklist. It apologised for this and said it has reminded staff about the importance of having a representative present in future.
24. When the Council responded to Mr X’s complaint in April 2025, it offered to complete a further CHC Checklist for Mrs Y. Mr X has not accepted the offer as he says he does not trust the Council will complete it correctly. The NHS need a completed CHC Checklist before it can arrange a DST to consider CHC funding or funded nursing care. I consider the Council’s offer addresses Mr X’s concerns about the accuracy of previous checklists and gives him the opportunity to provide his views. This would effectively remedy this part of the complaint. We are unlikely to achieve more by investigating. Mr X should contact the Council if he wishes to proceed with a new CHC Checklist.

DoLS

25. The mental capacity assessment in early 2025 found Mrs Y lacked the ability to understand and make decisions about her care and accommodation. The Council therefore needed to consider DoLS for her to continue living in the Home.
26. The Council’s Best Interest Assessor for DoLS called Mr X in March 2025 to explain the reasons for the DoLS assessment. They followed this up with an email and asked for Mr X’s views. The Council sent a further email to Mr X just over a week later attaching the completed mental capacity assessment.
27. The Council had to consider DoLS when Mrs Y was no longer able to make decisions about her care. It ensured it explained the process to Mr X and the reasons for this. The Council also sought Mr X’s views and shared the decision in writing with Mr X. It is therefore unlikely we would find fault with the Council’s communication with Mr X about the DoLS assessment.
28. With regards to the Council’s appointment of a paid representative, it explained that it considered various reasons. This included whether the proposed representative could represent the person’s best interests and do this effectively. The Council considered there was a potential conflict of interest for Mr X to act as his mother’s representative and noted Mr X did not want a DoLS in place for Mrs Y. However, the Council clarified it would still consider Mr X’s views. This indicates the Council considered relevant background and consulted with Mr X to gather the information needed to reach a decision.
29. However, the Court of Protection can consider the Council’s decisions about DoLS and appointing a paid representative. Mr X has advised us the Court of Protection is currently considering Mrs Y’s DoLS. As resolution by the Court of Protection is available, the Ombudsmen cannot consider the appropriateness of the DoLS decisions.

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Decision

30. We will not investigate this complaint because issues from 2022/23 are late and the Court of Protection can consider the DoLS decisions. We are also unlikely to achieve more than has been achieved during the local complaints process.

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Investigator's decision on behalf of the Ombudsman