Summary: The Ombudsmen will not investigate a complaint about the care the complainants’ son received in supporting living. The complaint is late and there are insufficient grounds to accept it now.

The complaint

1. Mr and Mrs F complain about the care and treatment their late son, Mr P, received at Maple Avenue Supported Living (owned by Mencap), a placement funded by City of York Council (the Council) and Vale of York CCG (the CCG). Mr P died on 22 September 2015 after having an epileptic seizure, and Mr and Mrs F believe this was caused by neglectful and inconsistent treatment. They say staff at Maple Avenue failed to consider the family’s views on how to meet Mr P’s needs.
2. Mr and Mrs F also complain about an independent review into the circumstances of Mr P’s death the Council commissioned. They say the review was not impartial and failed to properly scrutinise the care providers. They also complain the Council chose not to carry out an adult safeguarding review and they are dissatisfied with how Mencap responded to their concerns.
3. Mr and Mrs F also complain they had to push for an independent review and a Coroner’s inquest to take place. They do not agree with the Coroner’s verdict and say the Coroner did not adequately consider the social care Mr P received. They say there was not a level playing field at the inquest. They are seeking an independent investigation from the Ombudsmen into the care Mr P received.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue an investigation if they believe there is a good reason to do this. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
6. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen 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).)

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How I considered this complaint

7. I considered the information Mr and Mrs F sent me and discussed the complaint with them and their advocate. I considered the independent investigation report, the complaints correspondence with Mencap and the Council, and the record of Mr P’s inquest. Mr and Mrs F and their representative have commented on a draft of my decision and this has been taken into account.

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What I found

8. The legislation governing the Coroner is the Coroners Act 1988 and the Coroners Rules 1984. Coroners are appointed to investigate any violent, sudden or unexplained or unnatural death. Their statutory role is limited to determining the cause of death, and does not extend to monitoring the adequacy of services.
9. An Inquest is a limited medical/legal enquiry into the circumstances leading up to death. The purpose of an Inquest is to establish the identity of the deceased, when, where and how the death occurred and to establish the facts so that the death can be registered. These established facts are together called the "verdict".
10. There is no formal right of appeal from an Inquest, but the Coroner’s decision can be challenged via judicial review or through an application to the High Court with the permission of the Attorney General.

What happened

11. Mr P was a man aged 36 with learning disabilities, autism and epilepsy who was resident at Maple Avenue between June 2013 and September 2015. His service was commissioned by the Council, with some funding from the CCG through NHS Continuing Healthcare (CHC). Mr P died unexpectedly on 22 September 2015 following an epileptic seizure.
12. In October 2015, Mr and Mrs F complained to Mencap about the care Mr P received. They met with Mencap’s Chief Executive following this. In December 2015, they were told the Council would not carry out a safeguarding enquiry into Mr P’s death.
13. In July 2016 the Council commissioned an independent review regarding the circumstances of Mr P’s death. This was completed in March 2017. The review was critical of aspects of the care Mr P received, but did not find that his death was caused by the actions of Mencap or the Council.
14. An inquest was held in April 2018. The Coroner’s verdict was that there was no evidence of neglect and that Mr P died of natural causes. The Coroner found that the communication between Mencap, the Council, and the family was not satisfactory.
15. In September 2018 Mr and Mrs F’s advocate brought their complaint to the Ombudsmen.

My analysis

Mr P’s Care and Treatment

16. Mr and Mrs F complain about care and treatment Mr P received between June 2013 and September 2015. As Mr and Mrs F complained to us in September 2018, this complaint is late.
17. The Council did not complete its internal investigation until March 2017 and I accept that the family could not have complained to us before then. However, when the independent review was published this gave the family an opportunity to complain to the Ombudsmen which they did not take.
18. The advocate has said that the family could not have complained at an earlier point as they were pursuing a Coroner’s inquest. Mr and Mrs F are unhappy with the inquest process, but these issues fall outside of the Ombudsmen’s remit. The Ombudsmen cannot review the Coroner’s decision and an Ombudsman’s investigation is not the ‘next stage’ in the Coroner’s process. The only way to challenge the Coroner’s verdict is through the courts. Therefore, it was not necessary for the family to pursue this process before complaining to us.
19. I accept that as laypeople, Mr and Mrs F did not have a detailed knowledge of the different processes for raising concerns, and that this could have prevented them from coming to us sooner. I have also considered whether investigating this late complaint would result in a further, meaningful decision.
20. Mr and Mrs F believe the care Mr P received was neglectful and that this and systemic failings contributed to his death. The Coroner’s verdict was that Mr P did not die due to abuse or neglect. Mr and Mrs F hope that in considering this complaint the Ombudsmen will come to a different view than that of the Coroner.
21. There is nothing in law that prevents the Ombudsmen from looking at the same issues that the Coroner has previously considered. However, the Coroner is established specifically to determine the cause of death in any given case and to do so carries out a formal judicial process. The Coroner had access to all of the available evidence surrounding the circumstances of Mr P’s death. The Coroner called and cross-examined witnesses, and Mr and Mrs F were given an opportunity to contribute to this process.
22. This means we would need good cause to justify investigating the same facts on which the Coroner has previously made a formal determination. For example, if there was compelling new evidence not previously available to the Coroner. The complainants have not presented any information not previously considered by the Coroner. I have not seen any information that would cast the verdict of the Coroner into doubt. Because of this, my view is that we would not be justified in looking at the same issues that the Coroner has previously considered. To do so would run the risk of trespassing on the remit of the Coroner, or acting as a substitute for the courts.
23. Were we to investigate this complaint, we could not act as an appeal to the Coroner’s decision, and we would not proceed with an investigation which sought to look again at issues that the Coroner has already considered. Taking this into account, my view is that there are insufficient grounds to accept this late complaint now.

Other issues

24. While they are mainly concerned with the care that their son received, Mr and Mrs F also complain about the service they received from the organisations involved in Mr P’s care. Specifically:
• They believe care staff and commissioners failed to consider the family’s views on how to meet Mr P’s needs.
• They are unhappy with how Mencap responded to their concerns.
• They believe the independent review, commissioned by the Council, was not fit for purpose, and has not brought about sufficient change.
• They believe the Council should have carried out an adult safeguarding review after Mr P passed away.
25. These complaints are late, and my view is that there are insufficient grounds to accept them now. In making this decision I have considered:
• Mr and Mrs P say they were caused great distress by the loss of their son which prevented them complaining sooner.
• That the inquest process, and the independent investigation process, took time and meant they couldn’t complain to the Ombudsmen sooner.
• That as lay people they did not have an awareness of the different processes and who to complain to.
• They did not know the extent of the Council’s failures regarding safeguarding, until the inquest process started.
26. However,
• Mr and Mrs P’s additional complaints were distinct from their complaints about the treatment Mr P received. There was nothing to prevent them bringing these to the Ombudsmen, while the other processes were ongoing.
• I accept that Mr and Mrs F learnt more about alleged failures in safeguarding in 2017. Despite this I maintain they had enough of an awareness in 2015, that a safeguarding review would not take place, to have complained to us then.
• I do not wish to minimise the impact the loss of their son would have had on the family’s ability to complain to us. However, I also have to consider whether there would be any merit in setting aside the time limit to investigate these late complaints. My current view is that the Ombudsmen should not investigate the complaint about Mr P’s care and treatment. Because of this I believe an investigation that solely looked at the complaint handling and communication issues is unlikely to offer a further meaningful outcome for Mr and Mrs F.

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Decision

27. The Ombudsmen should not investigate Mr and Mrs F’s complaints about the care and treatment their son received, or about the way organisations involved in his care communicated with them. The complaints are late and there are insufficient grounds to accept them now.

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Investigator's decision on behalf of the Ombudsman