Summary: There was no fault in the Council’s actions. The delay in Mrs X discovering her mother’s death was sad and unfortunate but not the fault of the Council or care provider.

The complaint

1. Mrs x (as I shall call the complainant) says the Council did not act on her concerns about her mother’s care in two separate care homes, and then delayed in notifying her of her mother’s death.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
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. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered the information provided by Mrs X and by the Council. Both Mrs X and the Council had the opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

6. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity.

The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

7. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.
8. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

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What happened

9. Mrs X’s late mother Mrs D was admitted to Care Home 1 in July 2016 when she could no longer be cared for at home. Her care was funded by the NHS. In August she was the subject of a Best Interest meeting as Mrs X and her brother believed that Mrs D should return home. They thought the assessment of her lack of capacity was influenced by her medication. Mrs D remained in Care Home 1 until September 2016 when she was admitted to hospital.
10. In February 2017 Mrs D was admitted to Care Home 2. Shortly after admission Mrs D was the subject of a safeguarding investigation (Mrs X raised the alert) after she fell out of bed and cut her face. At the safeguarding meting Mrs X acknowledged she was unable to look after Mrs D at home but expressed her concerns that Care Home 2 was not right for her mother. In conversation with Mrs D’s social worker however she said she was “accepting” of Care Home 2.
11. Mrs D did not return to Care Home 2. On discharge from hospital she moved to Care Home 3.
12. Mrs D died on 21 September. The Council’s records show the manager of care Home 3 tried to telephone Mrs X on 20 September to let her know Mrs D was ill but could not reach her. After Mrs D’s death, the care home again tried both the numbers they held for her but without success. The social worker offered to try and contact her instead. He tried both her telephone numbers without success. He notified the care home and gave the staff there the other contact number he had, for Mrs X’s brother.
13. The care home sent a letter first-class post to Mrs X’s address. It also left a telephone message for Mrs X’s brother but he said it had been very quiet and ‘heavily accented’ and he had not listened to all of it. Mrs X says her mobile phone had been out of order since 19 September and she had then been ill, and stayed away from home for a few days. It was not until she recovered, when she telephoned the care home to say she would visit, that she was told Mrs D had died.
14. Mrs X complained to the care home and to the Council about the delay in notifying her. She asked the Council why the social worker could not have put a note through her door.
15. The Council responded to her complaints. It explained how the care home and the social worker had attempted to contact her.
16. Mrs X says she was ill for some time after she received the Council’s response to her complaints and so it took some time before she was able to complain to the Ombudsman.

Analysis

17. Disputes over decisions about capacity are not a matter for the Ombudsman but for the Court of Protection. When Mrs X and her brother disputed the Council’s assessment that Mrs D lacked capacity it was open to them to take further steps at that time.
18. Mrs X did not complain to us at the time about alleged poor care in the care homes. She has been ill subsequently but I cannot see a good reason to investigate now her complaints about matters in 2016.
19. There is no evidence the Council acted with fault following Mrs D’s sad death. Every attempt was made by the Council and the care provider to contact her, unfortunately without success.

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Final decision

20. There was no fault on the part of the Council

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Investigator's decision on behalf of the Ombudsman