Summary: We will not investigate this complaint about Mr Y’s death from choking in a care home. We could not achieve a meaningful outcome as we could not say care staff were responsible for Mr Y’s death. It remains open to Mr X to pursue civil proceedings.

The complaint

1. Mr X complained the Council-commissioned Care Provider failed to take actions agreed after his brother, Mr Y, had previously choked. He said the Care Provider’s inaction led to his brother’s death. He wanted the Care Provider to accept fault and apologise, and to be held accountable and punished.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• 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, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. Mr Y lived in a care home. Mr X, his brother, says Mr Y had previously choked and his care plan had been updated. He says, however, the Care Provider did not take the necessary actions and Mr Y died following a further choking incident.
7. The matter has been investigated by the Care Quality Commission and the coroner. The coroner recorded Mr Y’s cause of death as “asphyxiation due to obstruction of the upper airway by a food bolus”. They did not comment on the actions of care staff and whether these contributed to Mr Y’s death. The Care Quality Commission closed the matter with no action against the Care Provider.
8. Mr X seeks accountability for Mr Y’s death. We could not say the Care Provider was responsible for Mr Y’s death. If we investigated, we could not add anything of value to the investigations that have already taken place.
9. Our role is also not a punitive one. When we recommend remedies, it is with an attempt to put the person back in the position they would have been but for any fault. We could not remedy any injustice to Mr Y as he has died. We would also be unlikely to conclude any injustice to Mr X in the way of distress or uncertainty was directly because of fault by the Care Provider.
10. Mr X has sought legal advice and says the solicitor told him he had a strong case for civil action. This option remains open to him. In this case, that option would be reasonable as we simply could not achieve the outcomes Mr X seeks.

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Final decision

11. We will not investigate Mr X’s complaint because we could not achieve a meaningful outcome by doing so.

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Investigator's decision on behalf of the Ombudsman