Summary: Ms B complains about the care provided to her adult son, Mr X by the Council through a care provider commissioned to meet his needs. The investigation is discontinued as Ms B has started court action which will consider the same matters raised in the complaint.

The complaint

1. Ms B complains about the care provided to her adult son, Mr X, by the care provider commissioned by the Council through its. She complains that:
• The night staff start at 22.00hrs which is too late and not in Mr X’s best interests;
• There is insufficient stimulation and activities for Mr X;
• The care provider does not set enough boundaries for him, for instance by allowing him to eat junk food; and,
• Safeguarding alerts Ms B and others have raised have not been investigated.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

4. I considered the complaint and documents provided by Ms B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.

Back to top

What I found

Legal background

Court of protection

5. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
6. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. 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
• appoints deputies to make decisions for people lacking capacity to make those decisions
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid, and
• removes deputies or attorneys who fail to carry out their duties.

Deprivation of liberty

7. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home or hospital. They do not apply to people living in the community so therefore a deprivation of liberty in a community setting must be authorised by the Court of Protection

Summary of what happened

8. Mr X is 20 years old and has a diagnosis of severe learning disabilities and autism. He lives in a bungalow in the community with 24 hour care.
9. In January 2018 the Council started the process with the Court of Protection to apply for a DoLS for Mr X. The Court made the final order in September 2019. This stated that as Mr X’s representative Ms B would monitor the care plan and that she could make an application to the Court if she considered the care plan was no longer in the best interests of Mr X. In October Ms B made an application to the court with her concerns about the care.

Analysis

10. I had started to investigate Ms B’s complaints before the court action was concluded. However as Ms B has now made an application to the court I do not consider I have jurisdiction to investigate the complaints further. Inevitably the court will consider those same matters that have been raised as part of this complaint and I do not consider I can separate out any matters that I can investigate.

Back to top

Final decision

11. The investigation is discontinued as Ms B has started court action which will consider the same matters raised in the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman