Summary: The Ombudsman has discontinued its investigation into a complaint about an alleged incident at a care home that happened more than five years and the Council’s refusal to disclose documents about its investigation into the incident. The complaint is out of time and other agencies are better placed to investigate the complaint.

The complaint

1. Mr B complains on behalf of his mother, Mrs C. He says Mrs C suffered an assault in a care home in 2014 which left her in a wheelchair. He says the Council is refusing to disclose the safeguarding enquiry report it carried out to investigate the assault.

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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. 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)

3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. 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)
5. 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

6. I have discussed the complaint with Mr B and I have considered the documents he has sent and Mr B’s comments on the draft decision.

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What I found

Law and guidance

Mental Capacity

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act and the Code of Practice 2007 describe the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
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.
9. 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.
10. The Code of Practice explains the rules to access information about healthcare or social care and what to do if there is a disagreement between the staff and the carer on what should be disclosed.
11. It says the starting point should be to obtain the person’s consent if they have capacity to give consent. If they lack the capacity to do this, the decision must be made on a best interest basis. If this fails, the carer may need to make a complaint. If the carer and the staff cannot settle their disagreement, the carer can apply to the Court of Protection.

Safeguarding

12. Section 42 of the Care Act 2014 says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

What happened

13. Mrs C lives in a care home and self-funds her care. Mrs C has signed a deferred payment agreement so the Council is paying for her care and has taken a charge on her property.
14. Mr B says the following happened. Mrs C underwent surgery to remove a tumour on her spine in June 2014. A plate was inserted to support her spine.
15. She went back home after her discharge from hospital and suffered two falls. The wound became infected. She went into a care home and then to hospital where she had a second surgery to clean out the infection.
16. After the discharge from hospital she went to a different care home, care home D, on 27 July 2014. She was taken back to hospital by ambulance after two days complaining of severe pain. She had a third surgery in August 2014 where it was discovered that the screws which held the plate in place had come loose and were pressing on her spine. She remained in hospital for several months and was heavily sedated.
17. She was discharged from hospital in November 2014 and went to live at a different care home. She was unable to walk and needed a wheelchair.
18. Mr B says that at the end of 2015, Mrs C started to remember events which happened at care home D. Mrs C said she had been assaulted at care home D.
19. The Council carried out a section 42 safeguarding enquiry into the incident in April 2016.
20. Mr B says Mrs C asked the Council, over the following years to give her the safeguarding enquiry report into the assault. Mr B says that, at the time, Mrs C still had the mental capacity to make that request. Mr B says he made verbal requests on Mrs C’s behalf to disclose the report and Mrs C wrote a letter to the Council. He says the Council refused to disclose the report to Mrs C.
21. Mr B’s position is that Mrs C has been in a wheelchair and in need of full-time care as a result of what happened at care home D. He says Mrs C would not be in a care home if the incident had not happened so she should not have to pay the care fees. Mr B says he wants to see the safeguarding report as he is convinced that it contains information that will help his claim.
22. The Council says it has shared the outcome of the safeguarding enquiry with Mrs C in August 2016 and has done so on two further occasions.
23. Mr B says Mrs C made an official subject access request for the report in May 2018, but the Council refused it as it said Mrs C no longer had the mental capacity to understand the report.
24. Mr B has a Lasting Power of Attorney (LPA) for Mrs C for health and welfare and for property and finance. Mr B says there is a problem with the LPA for health and welfare as his wife witnessed his signature. The Office of the Public Guardian is supporting him in his application to the Court of Protection to annul the LPA and to appoint him as Mrs C’s deputy for health and welfare. Mr B is waiting for a hearing date at the Court of Protection. The Council says the LPA is currently suspended although Mr B disputes this.
25. Mr B made a subject access request to the Council for the disclosure of the report on 8 January 2019 which the Council has refused.
26. Mr B has now complained to the Ombudsman. He says the Council is abusing its position of power and is acting illegally by refusing to disclose the safeguarding enquiry report to him.

Analysis

27. I have considered Mr B’s complaint, both about what happened in 2014 and also his request to disclose the safeguarding enquiry report.
28. The Ombudsman does not normally investigate complaints which relate to events that have happened over a year ago. We can sometimes exercise discretion to do so if there are good reasons.
29. I have considered exercising discretion in this case but have decided it would not be appropriate to do so for the following reasons.
30. Firstly, the reason why there is a time limit for an investigation is that the more time has passed, the more difficult it is to have a meaningful investigation into a complaint. That is because the documents are often no longer available and the people who were involved in the complaint have often left or cannot remember the events. In this case there is a time gap of over five years and this is far too long to have a meaningful investigation.
31. Secondly, Mrs C could have made a formal complaint to the Council about the assault and/or the failure to disclose the report in 2016.
32. Also, there is a further reason why I cannot investigate Mr B’s complaint about the alleged assault in 2014. The law says the Ombudsman cannot carry out an investigation if a person can take the matter to court. Mr B is saying that the incident at the care home has caused Mrs C an injury and the injury is the reason why she is now forced to pay for a care home. As this is essentially a personal injury claim where Mr B is seeking damages, Mr B should take the matter to the court. The Ombudsman is not a court and cannot provide the outcome that Mr B seeks.
33. I have also considered further whether the Ombudsman should investigate Mr B’s request to give him the safeguarding enquiry report.
34. The Ombudsman does not normally investigate complaints about the disclosure of documents as it expects complainants to go to the Information Commissioner’s Office. The ICO specialises in this type of complaint and is therefore far better placed to investigate it. My view is therefore that Mr B should approach the ICO in the first instance.
35. Alternatively, if the ICO says it cannot make a decision because the complaint relates to a best interest conflict under the Mental Capacity Act, then Mr B should take his request for disclosure to the Court of Protection. The Court of Protection is the final decision maker in cases where there is a conflict such as this one. Either way, it is not a decision for the Ombudsman to make.

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Final decision

36. The Ombudsman has discontinued the investigation.

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Investigator's decision on behalf of the Ombudsman