Summary: The Ombudsman will not investigate Mrs A’s complaint about care provided to her late mother, Mrs B, in 2016. This is because any further investigation could not add to the care provider’s responses or provide Mrs A with the outcome she wants. So there is no good reason for the Ombudsman to disapply the law and investigate this late complaint now.

The complaint

1. Mrs A complains about the care her late mother, Mrs B, received between April and October 2016. Mrs A says she has not had a full response to her concerns that her mother was neglected, and her care provider should have assessed whether Mrs B would have been eligible for Continuing Health Care (CHC) funding.

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The Ombudsman’s role and powers

2. 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 care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

3. I considered the information and documentation Mrs A provided. I sent Mrs A a copy of my draft decision for comment.

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What I found

4. Mrs B lived in the care home between April and October 2016 when sadly she passed away.
5. Mrs A complained to the care provider in March 2017 about the care Mrs B had received. The care provider responded in July 2017. Mrs A says the response she received in 2017 contained inaccurate and incomplete information. Mrs A asked the care provider to investigate further in May 2018. The care provider investigated Mrs A’s concerns and found areas where Mrs B’s care was not at an acceptable standard. It advised Mrs A in September 2018 although it was sometime since Mrs B lived in the home there had been developments in the organisation to prevent similar occurrences happening in the future. It said:

• The Regulation team have completed Divisional training to all staff in relation to the Mental Capacity Assessments and Best Interest Meetings.
• There is now a Diabetes policy which outlines managing the well-being of residents involving external healthcare professionals.
• The Nutrition manual includes detailed information on the requirements of special diets and modified food preparation In Ilse with the National descriptors
• The choking policy has been reviewed multiple times since 2016

6. Mrs A complained to the Parliamentary and Health Service Ombudsman (PHSO). Mrs A says PHSO initially said it will investigate all aspects of her concerns but has recently advised her it will only consider the health care elements of her complaints. Mrs A has asked the Local Government and Social Care Ombudsman to consider her concerns about Mrs B’s care provision.
7. The law says complaints to the Ombudsman must be made-

• in writing, and
• before the end of the permitted period.

(2) In subsection (1)(b), “the permitted period” means the period of 12 months beginning

With-

• the day on which the person affected first had notice of the matter, or
• if the person affected has died without having notice of the matter—
• the day on which the personal representatives of the person affected first had notice of the matter, or
• if earlier, the day on which the complainant first had notice of the matter.

(3) A Local Commissioner may disapply either or both of the requirements in subsection (1)(a) and (b) in relation to a particular complaint.

8. Mrs A says she did not come to the Ombudsman sooner because she was dealing with the death of Mrs A and shortly after her father passed away. In addition, she believed PHSO would investigate all matters.
9. I have decided not to exercise the Ombudsman’s discretion in this case. This is because any injustice between April to October 2016 was largely Mrs B’s and sadly, as she has died, there is now no suitable remedy to any fault an investigation might uncover. Secondly, an investigation would be unlikely to add to the responses which the care provider has already provided Mrs A with. As explained, the care provider has implemented new procedures and processes since 2016 to minimise the risk of similar occurrences.
10. Mrs B’s care provider says it should have assessed whether she met the criteria for CHC funding while she was in the home.
11. It is the CCG’s decision whether to award CHC funding, so Mrs A can apply for a retrospective assessment and as the applicant tell the CCG why Mrs B needed nursing care. It is up to CCG to get all information it needs to decide an application. Information about the NHS CHC funding can be found on the website below.

https://www.gov.uk/government/publications/national-framework-for-nhs-continuing-healthcare-and-nhs-funded-nursing-care

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Final decision

12. The Ombudsman will not investigate this complaint. This is because any further investigation could not add to the care provider’s responses or provide Mrs A with the outcome she wants. So there is no good reason for the Ombudsman to disapply the law to investigate this late complaint now.

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Investigator's decision on behalf of the Ombudsman