Summary: The Ombudsman will not investigate Mr Q’s complaint about the Council’s refusal to allow his mother to return to live in her own home. We are unlikely to add to the Council’s investigation. In any event, Mr Q may go to court.

The complaint

1. The complainant, who I have called Mr Q, complained on behalf of his mother, Mrs X. He said Essex County Council refused to allow his mother to return from her care home to live in her own home once more.

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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 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 could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

5. I considered the information Mr Q provided. I considered the information the Council provided. I invited Mr Q to comment on a draft of this decision.

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What I found

Background

6. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decision for themselves. The Court of Protection may need to become involved in difficult cases where are disagreements that cannot be resolved in any other way. Among other things, the Court of Protection

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions.

What happened

7. Mr Q’s mother, Mrs X, has dementia. Following a Mental Capacity Act assessment, the Council decided Mrs X did not have the capacity to decide where she should live. It later held a Best Interests meeting to decide whether Mrs X’s care home was appropriate for her. Mr Q attended the meeting and did not object to Mrs X’s placement in the care home.
8. Mr Q later asked the Council to allow his mother to return to her own home so he could care for her. He said it was what he and his mother wanted. The Council refused to allow Mrs X to return to her own home. It said she would not receive the same level of care and support in her own home that she received in the care home.
9. Mr Q believes his mother has the capacity to decide where she should live. He also believes the Council only listened to what his sisters wanted, which is that Mrs X should remain in the care home.

Assessment

10. We will not investigate this complaint.
11. The Council considered Mr Q’s request for his mother to return to her own home and explained why it would not agree to this. It is unlikely we could add to the Council’s investigation.
12. In any event, there is clear disagreement between Mr Q and the Council over Mrs X’s mental capacity to decide where she should live. There is also disagreement between them over whether she should return home. These are matters the Court of Protection can decide. We do not have the power to make such decisions. So, if Mr Q wants a determination on his mother’s capacity and where she should live, he can go to the Court of Protection. It would be reasonable for him to do so.

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Final decision

13. We will not investigate this complaint for the reasons given in the Assessment.

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Investigator's decision on behalf of the Ombudsman