Summary: The Ombudsman will not investigate this complaint about the quality of domiciliary care for the complainant’s son. This is because the complaint is made late and is out of our jurisdiction.

The complaint

1. The complainant, who I refer to here as Mr N, says that the care that his son, S, received at his home before his death was of an unacceptable standard. In particular he says that:
• There was no food in S’s fridge when he died and he had not eaten that day. Mr N says the carers did not ensure that S had food, and ate it; and
• The administering of S’s insulin was handed over to a care worker rather than being supervised by qualified medical personnel.

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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 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 a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. 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
• the fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered the information provided by Mr N, and I have sent him a draft decision for his comments.

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What I found

7. Mr N’s son, S, who had diabetes, lived independently, but was provided with daily support at his home from the Care Provider.
8. In March 2017, S died. There was an inquest into his death, but Mr N was not persuaded that the questions he had about his son’s death had been fully answered. He therefore complained to the Council.
9. Mr N remained dissatisfied following the Council’s response, and has now complained to the Ombudsman. However, we will not investigate the complaint as it is made late. The Ombudsman cannot investigate matters known to the complainant more than 12 months previously, unless there are good reasons to do so.
10. In this case, Mr N knew about the matter in March 2017 but did not complain to the council until October 2018, and to the LGSCO until March 2019.
11. I have considered whether there are good reasons to exercise the Ombudsman ‘s discretion to set aside the time bar, as Mr N says that he resides in a care home and had difficulty in making complaints. He also says that he initially complained to the Parliamentary and Health Services Ombudsman (PHSO).
12. However, despite my sympathy for the distress caused to Mr N by the loss of his son, and for his own difficulties, there are a number of other considerations which lead me to conclude that we should not set aside the restriction and investigate.
13. The first of these concerns our jurisdiction. Mr N complains that the Council was negligent: this is a legal concept that is best tested in court.
14. He also says that the Council should have prevented the implementation of the decision by S’s GP to allow the care worker to supervise the insulin injections, rather than a medical professional. But it is not the Council’s or the Ombudsman’s role to question medical decisions made by the NHS.
15. Mr N has already made a complaint to the PHSO, and this is the correct authority to consider this matter once it has completed the NHS complaints procedures. It is out of the LGSCO’s jurisdiction.
16. I have additionally considered the outcome that Mr N says he wants, which is for the Council to apologise, as he believes it did not follow correct medical procedures. However, as we could not make that finding, we would be unable to achieve that outcome.
17. Further to this, Mr N says that the carers should have ensured that S had food at home, and that he ate it. The Council’s response says one of the carers walked out of the house with S, on the day before his death, as he was heading for the supermarket. Later that day, the carers missed S’s second visit, but it is recorded that the last visit of the day took place. There is no record of whether S ate anything, or what the carers did to persuade him to eat, but it was known he sometimes refused food. He had capacity to make his own decisions on the matter.
18. Mr N says that if S did not eat the evening, it might have contributed to his death. This was not a finding of the coroner however, and not a finding that we could make. Consequently, investigation of this issue would be unlikely to find fault causing injustice.

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Final decision

19. I will not investigate this complaint. This is because it is made late and there are no good reasons to investigate it now as we would not be able to achieve the complainant’s desired outcomes.

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Investigator's decision on behalf of the Ombudsman