Summary: We will not investigate this complaint about how the Council handled concerns about a Lasting Power of Attorney and how it considered a complaint about outstanding fees for care. There is insufficient evidence of fault to justify investigation and we could not achieve the outcome Miss X and Mr Z seek.

The complaint

1. Miss X and Mr Z complained the Council:
• failed to provide safe or appropriate care for their mother (Mrs Y);
• said it was satisfied with Mrs Y’s care despite several safeguarding referrals;
• raised an unfounded concern with the Office of the Public Guardian (OPG); and
• did not properly consider their complaint about Mrs Y’s care fees.
2. Miss X and Mr Z said the Council obstructed their roles as Lasting Power of Attorney (LPA), caused Mrs Y distress and worsened her condition, and caused them distress. They said they are being wrongly pursued for £18,000 in fees. They wanted the Council to waive fees, acknowledge fault and properly consider their complaints, apologise and make service improvements.

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The Ombudsman’s role and powers

3. 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)

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 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))

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How I considered this complaint

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

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My assessment

7. I have not considered complaints made on behalf of Mrs Y, for reasons I have explained to Miss X and Mr Z. I have focused on the complaints relating only to Miss X and Mr Z’s claimed injustice.
8. Miss X and Mr Z complain the Council’s referral to the OPG about their LPA was unfounded. The evidence I have seen does not support this. The Council clearly explained to them its concerns arose when it became aware they had obtained LPA for Mrs Y’s health and welfare after Mrs Y had already been assessed as lacking mental capacity in relation to her care and support. The Council has a responsibility to report such concerns to the OPG. There is insufficient evidence there was fault by the Council and we will not investigate this matter.
9. Miss X and Mr Z also complained the Council failed to properly consider their complaint about care fees. Their complaint was that they should not lawfully have to pay for a service that was not provided. Their view the service was not provided relates directly to the quality of Mrs Y’s care, which we will not investigate.
10. We already explained in a previous decision statement that we would not investigate complaints about Mrs Y’s quality of care and that “even if we did find the care provided was not to the required standard, we would not recommend payments to an estate where we have to make a judgment about the quality of care provided. This is because these are remedies for injustice to that person and as such cannot have that effect once the person is dead”.
11. We explained Miss X and Mr Z could make a complaint to the Council, and then us, about any alleged issues with charging or financial assessment. The complaint they subsequently made was not about issues with charging or financial assessment. Their complaint instead reiterated that they believe they should not pay fees for a poor service. We have already explained why we will not investigate that complaint. We cannot achieve the outcome Miss X and Mr Z seek, of a waiver of care fees. Given this, there is no fault in the Council’s decision to pursue them for outstanding care fees, as it is entitled to carry out enforcement action where invoices remain unpaid. It is open to Miss X and Mr Z to argue their defence as part of any court action the Council decides to initiate.
12. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. Miss X and Mr Z’s concern about the Council’s complaint-handling relates to their complaint about care fees. Given we will not reconsider the substantive matter, it is not a good use of public resources to investigate the Council’s complaint-handling alone. Their concern was that the Council did not carry out a proper stage two review, and in any event, the statutory adults social care complaints process is a one-stage process. We do not require councils to carry out further stages before we can consider complaints, and there is insufficient evidence of fault.
13. Their concern about complaint-handling also related to a lack of response to other areas of complaint. These related to prolonged assessment and incorrect records. Given that we will not investigate complaints on Mrs Y’s behalf, we will not consider the substantive complaints relating to prolonged assessment. There is nothing we could achieve by investigating their complaint about the content of care home records about them, because this ultimately relates to decisions about Mrs Y’s care and support. We will also not consider complaint-handling for these parts of the complaint in isolation.

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Final decision

14. We will not investigate Miss X and Mr Z’s complaint because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman