Summary: We will not investigate this complaint about Mrs Y’s neglectful treatment in a care home before her death. The Council has already made an offer of a financial remedy for the distress Mrs X and her sister experienced. We could not achieve a different outcome as the Ombudsman’s role is not to award compensation, and it is open to Mrs X to apply to the courts if she wishes to pursue a higher figure.

The complaint

1. Mrs X complained about her mother’s (Mrs Y’s) neglectful treatment while staying in a care home, before her death. Mrs Y was not sufficiently fed and hydrated. There are missing records, and Mrs X and her sister are subsequently left with uncertainty about what else Mrs Y may have experienced. The Council missed opportunities to protect Mrs Y. The family experienced stress and trauma and they want the Council to offer a more suitable figure than it has, to compensate them financially.

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The Ombudsman’s role and powers

2. 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 cannot achieve the outcome someone wants, or
• there is another body better placed to consider the complaint.

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

3. 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

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs Y died after being admitted to hospital from the care home where she lived. The Council carried out a serious incident practice review due to the circumstances around her death. She was reported to be emaciated and had unexplained bruises and marks.
7. The Council found several issues with how Mrs Y’s case had been handled, and it set out recommendations and an action plan. Mrs X and her sister complained to the Council as they had experienced distress which they did not feel had been considered. The Council offered to refund Mrs Y’s care contributions, which amounted to nearly £2,000. Mrs X and her sister complained to us as they say they found this figure insulting, and they would like a more reasonable offer.
8. Our remedies are for injustice, we do not offer compensation or hand out punitive fines. When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. We focus on restoring services that have been denied and recommending practical steps to put things right. Where that is not possible, we will try to think of creative remedies that acknowledge the impact of faults. When we recommend a payment, it is often a modest, symbolic amount. It is not our role to assess economic losses or award compensation. The courts are for people where this is a primary goal.
9. The Council’s offer is already over and above what we would usually be likely to recommend in such circumstances. We cannot achieve a higher figure than the Council has offered. It is open to Mrs X and her sister to approach the courts if they want to pursue a higher figure, as the courts are better placed to deal with claims for compensation.

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Final decision

10. We will not investigate Mrs X’s complaint because the Council has already offered a financial remedy which is in line with, or higher than, what we could achieve. It is the role of the courts, and not the Ombudsman, to consider claims for compensation.

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Investigator's decision on behalf of the Ombudsman