Summary: We will not investigate this complaint about private residential care because we could not add to any previous investigation, further investigation would not lead to a different outcome, and there is another body better placed to consider this complaint.

The complaint

1. Mrs Y complained, on behalf of her husband, Mr Y, that the Care Provider failed in its duty of care to her husband, causing his health to decline significantly.
2. Mrs Y says she found the poor care upsetting and Mr Y is now unable to return home, causing significant upset. She is seeking payment for ongoing care and reimbursement for the cost of the care received.

Back to top

The Ombudsman’s role and powers

3. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

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

Back to top

How I considered this complaint

4. I considered information Mrs Y and the Care Provider provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Mrs Y complained about the standard of care her husband received during a two week stay with the Care Provider. She raised several complaints including that her husband had been left in a cold room, at times without bed sheets and that his pre-stay condition was significantly better than after he had stayed with the care provider as he was able to weight bear initially but was unable to afterwards.
6. These and other issues relating to the care Mr Y received were raised as part of a safeguarding referral. A Section 42 enquiry is a formal adult safeguarding investigation carried out by a local authority under Section 42 of the Care Act 2014. The Care Quality Commission (CQC) also carried out a review of the Care Provider and its services.
7. The outcome of the Council’s safeguarding enquiry was inconclusive, but as part of the process, the Care Provider carried out a lessons learned exercise. This led to changes being made, for example further training for staff and a daily meeting of staff at the Care Provider to improve communication. As part of a meeting of all those involved, including Mrs Y, the Care Provider apologised to Mr and Mrs Y.
8. When we investigate complaints, we seek to put people back into the position they would have been in had they not have experienced the fault and suffered an injustice. Part of that includes making recommendations to try to prevent recurrence of the fault, to prevent an injustice. In this case, the Care Provider along with the Council and the CQC have considered the care given to Mr Y and have through the safeguarding procedure, taken the steps to prevent recurrence of the issue.
9. As part of her complaint to us, Mrs Y has agreed that through the safeguarding process, the issues she and her husband experienced have been largely resolved. Consequently, as the Care Provider has properly considered and investigated the complaint and taken steps to prevent recurrence, it is unlikely the Ombudsman would be able to add to the original investigation and it is unlikely further investigation by us would lead to a different outcome. We are a free service, but must use public funds carefully. Therefore we will not investigate this complaint.
10. The outstanding part of the Mrs Y desired outcome when she approached us includes a refund of the costs she paid for her husband’s care for the two-week stay and money towards to costs of his ongoing treatment. This is because in her view, the increased level of care needed for Mr Y is due to the care or failure to care by the Care Provider. This would be a negligence or personal injury claim.
11. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. We cannot determine liability claims for negligence or personal injury. These are legal claims which may only be determined by insurers or the courts.
12. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for both previous and ongoing care, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mrs Y to pursue a claim through either insurers or the courts. We will not investigate this complaint.

Back to top

Final decision

13. We will not investigate Mrs Y’s complaint because we could not add to any previous investigation, further investigation would not lead to a different outcome, and there is another body better placed to consider this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman