Summary: We will not investigate Mr X’s complaint about the care the Council provided for his mother, Mrs X. We could not add to the Council’s previous investigation of Mrs X’s fall, and investigation would not lead to a different outcome. We cannot achieve the main outcomes Mr X seeks from the complaint, which require findings of legal liability and negligence we cannot make, and it would be reasonable for him to pursue those outcomes in court.

The complaint

1. Mrs X is elderly and has dementia. Mr X is her son. Mrs X fell and was admitted to hospital. She was discharged to a residential care service run by the Council where she fell, fractured her hip, and returned to hospital.
2. Mr X complains the Council did not take the required precautions to make sure Mrs X was monitored and safely supported when with its service. He says this led to Mrs X’s hip fracture and her long hospital stay. He says Mrs X can no longer return home, which was the original plan, and her increased care needs are making it difficult to find her a permanent care home placement.
3. Mr X wants the Council to accept its system failures led to Mrs X’s injuries. He wants the Council to pay compensation for those injuries and ongoing issues they have caused for Mrs X. Mr X wants the Council to help Mrs X find a suitable care home and cover the full cost of her future care there.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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 considered information from Mr X, and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X’s complaint is that the Council’s assessments of Mrs X’s fall risk should have resulted in her receiving a higher level of staff supervision than she had. He believes that if that had happened, Mrs X would not have fallen and fractured her hip. But I have not seen any evidence that Mrs X was assessed as needing one‑to-one care at all times. The Council has set out the assessments staff did on Mrs X to determine her risk from falls. It has investigated the circumstances surrounding the falls, and further investigation by the Ombudsman could not make a different finding or add to the Council’s investigation of this issue. Even if we did investigate, we could not say there is a direct causal link between the level of supervision and Mrs X’s fall, so could not provide a different outcome.
8. At its core, the complaint is that Mr X holds the Council liable for Mrs X’s injuries because of negligence its care for her. The main financial and substantive remedies he seeks for Mrs X from the complaint reflect that core claim. Mr X wants the Council to accept liability for the injuries to Mrs X, and to compensate her for those injuries and ongoing issues related to them. He also wants the Council to accept liability for all Mrs X’s future care fees because he argues she would have returned home had it not been for the injuries from her fall.
9. We cannot achieve these outcomes Mr X wants from the complaint, which is a further reason why we will not investigate. Negligence and claims for compensation are properly for insurers or the courts to determine as they are legal matters. If insurers refuse a claim, it would be reasonable for Mr X to ask the court to determine liability for the injuries caused to Mrs X he says stemmed from negligence by the Council. The Ombudsman cannot make findings on such legal matters.

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Final decision

10. We will not investigate Mr X’s complaint because:

• we could not add to the Council’s previous investigation of the matter; and
• investigation would not lead to a different outcome; and
• we cannot achieve the main outcomes Mr X seeks from the complaint, and it would be reasonable for him to pursue those outcomes at court.

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Investigator's decision on behalf of the Ombudsman