Summary: We will not investigate this complaint about the Council demanding payment for a residential nursing home Mr X and Mr Y’s mother resided in. They also complain the nursing home provided inadequate care to their mother and that they were not given a choice in placing her in a nursing home. This is because the Council has started court proceedings to pursue the outstanding charges. In addition, on the other elements of the complaint, an investigation is not justified as we are unlikely to reach different findings or outcomes, and because any potential fault would not have caused any significant injustice.

The complaint

1. Mr X and his brother, Mr Y, complain the Council is demanding payment for a residential nursing home their mother resided in. They dispute the payment as they considered the nursing home provided inadequate care to their mother. They also complain they were not given a choice in placing her in a residential nursing home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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’. We provide a free service, but must use public money carefully. We do not start 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.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

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

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My assessment

7. Mr X and Mr Y dispute the charges for their mother’s, Mrs A, care home. The Council confirmed it has started civil proceedings in relation to the outstanding debt. Therefore, the Ombudsman cannot investigate the complaint about the outstanding charges as it is subject to ongoing court proceedings.
8. On the matter of the care home providing inadequate care to Mrs A, the Council outlined during its complaint investigation that the care home did not have full care records for the period she was in the home. The Council did review the Care and Quality Commission (CQC) reports for the period Mrs A was resident as part of its complaint investigation.
9. Therefore, an investigation is not justified as we are not likely to reach different findings or outcomes than that already outlined, due to the limited evidence available.
10. Finally Mr X and Mr Y said they were not given a choice in placing Mrs A in a residential home. The Council has provided evidence it completed a mental capacity assessment for Mrs A which identified she had no capacity to make decisions about her care and living situation. The Council also evidenced it made a best interest decision for Mrs A, with involvement from other professionals involved with Mrs A, and an independent mental capacity advocate.
11. The evidence does suggest Mr X and Mr Y was not involved in the best interest decision. This could amount to fault. However, it is unlikely their involvement would have affected the Council’s decision. This is because while the preferences of family can be taken into consideration, it does not mean their preferences must be followed. Instead, the decision reached must be made in the individual’s best interest, not what is in the family or friend’s best interest.
12. The records show a clear rationale for why the Council decided it was in Mrs A’s best interest to be placed in a residential nursing home, including detailed consideration of all the positives and negatives of all the options explored.
13. In addition, the records showed both Mr X and Mr Y agreed for the Council to place Mrs A in a temporary nursing placement, and later agreed that Mrs A needed a nursing placement due to her care needs.

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Final decision

14. We will not investigate Mr X and Mr Y’s complaint because the complaint is outside the Ombudsman’s jurisdiction. This is because the Council has started court proceedings to pursue the outstanding charges. In addition, on the other elements of the complaint, an investigation is not justified as we are unlikely to reach different findings or outcomes, and because any potential fault would not have caused any significant injustice.

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Investigator's decision on behalf of the Ombudsman