Summary: Ms C complains the Council and Trust failed to provide suitable care and safeguard her mother, Mrs D. Ms C complains the Care Provider inappropriately gave notice following safeguarding concerns and Mrs D was forced to move. We will not investigate this complaint as there is not enough evidence of fault or injustice and there is no worthwhile outcome achievable by an investigation.

The complaint

1. Ms C complains on behalf of her mother, Mrs D about services provided by Hazelgrove Nursing home, the “Care Home”, under section 117 Mental Health Act 1983.
2. Ms C complains the Care Home failed to provide suitable care to her mother and the Council took no action after there were safeguarding concerns. Ms C also complains the Care Home took retaliatory action by evicting Mrs D and the Council failed to intervene.
3. Ms C says because of these failures she had to stay with Mrs D at the Care Home to make sure Mrs D had the right support. Ms C also considers the lack of support from the Care Home resulted in a decline in Mrs D’s health.

Back to top

The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. 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 injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the bodies, or
• we cannot achieve the outcome someone wants.
  (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

7. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 

Back to top

How I considered this complaint

8. I considered evidence provided by Ms C, the Trust and the Council as well as relevant law, policy and guidance.
9. Ms C had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

10. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. This is known as section 117 Aftercare.

Background to the complaint

11. Mrs D moved into the Care Home in February 2024 provided under section 117 Aftercare. Ms C says since December 2024 the Care Home found it increasingly difficult to meet Mrs D’s complex health needs. These have included:
• a failure to manage Mrs D’s pain;
• an inappropriate change to a pureed diet without advice from Speech and Language Therapy (SaLT). Ms C says the Care Home did this for its own convenience as it only support residents for a maximum of 20 minutes with meals;
• failure to properly manage fluid retention in Mrs D’s mouth which resulted in a choking and pneumonia risk;
• failure to properly monitor and treat a pressure area;
• injury to Mrs D’s lip through poor care;
• inappropriate use of a wheelchair and manual handling equipment.
12. Ms C says the Council did not take any safeguarding action, provide an advocate; or intervene when the Care Home served Mrs D with an eviction notice. Ms C says the Care Home’s actions were in retaliation to her raising safeguarding concerns.
13. The Council provided Ms C with a list of care homes. There was however dispute between the parties about which care homes met Mrs D’s needs and had no extra care charges (known as a top-up).
14. The Council completed a safeguarding investigation. As part of the safeguarding investigation it consulted Ms C, the care home and relevant professionals. It also considered the Care Home records. The result of the investigation was that Mrs D was not at risk as she had moved to a different care home and Ms C was now happy with the care provided. The safeguarding investigation said it could not draw conclusions about the alerts because of conflicting views between Ms C and the Care Home about Mrs D’s care needs; and because Mrs D had conflicting needs. For example, “positioning to manage both pain (lying flat) and swallowing risk (lying at an angle) or preferences to avoid infection (Mrs D to remain in her room) whilst allowing for monitoring (Mrs D to remain in communal areas).”
15. The investigation said there were several professionals involved and trying to create a care plan which reconciled all the views and preferences was difficult. This difficulty resulted in the Care Home giving notice.

Why we will not investigate

16. Mrs D has complex needs and Ms C was trying to ensure Mrs D received suitable care. The Ombudsmen must consider proportionality when investigating complaints. In deciding whether to investigate the complaint I have therefore considered whether an investigation would reach findings of fault and achieve the results Ms C wants. I have also considered whether any potential fault has caused Mrs D or Ms C significant injustice.
17. I consider an investigation would be unlikely to find out whether there was fault/service failure by the Care Home. This is because the safeguarding investigation said Mrs D’s needs were complex and there was conflicting advice about what would best meet Mrs D’s needs. It also did not find anything which indicated the Care Home was not meeting Mrs D’s needs. Additionally it is difficult to say what is more likely to have happened where there is conflict in accounts and no independent evidence.
18. Ms C complained the lack of care caused Mrs D physical injury and health problems. It is however difficult to say the Care Home’s alleged poor practice caused these difficulties. There is nothing to suggest Mrs D received medical attention because of a lack of care.
19. Ms C was unhappy with the services provided by the Care Home and while I understand she was upset by the Care Home evicting Mrs D, she has now moved and is happy in her new home. Even if I were to find fault in the Care Home serving notice, I cannot say Mrs D or Ms C were caused significant injustice by the Care Home’s actions. Similarly Ms C complains about the process when finding a new care home. The Council has apologised for errors in communication which I consider is sufficient to remedy the frustration it caused Ms C.

Back to top

Decision

20. For the reasons set out above we will not investigate this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman