Summary: The Ombudsman will not investigate Mrs A’s late complaint about care provided to her mother Mrs B, prior to her death in 2017. This is because Mrs A could have come to the Ombudsman sooner if she was unhappy with Mrs B’s care or the Council’s responses to her concerns. There is no good reason to disapply the law in this case.

The complaint

1. Mrs A says she told the Council her mother, Mrs B, needed to move into level access accommodation following a fall downstairs in 2016 where she suffered a fractured hip. Mrs A says she made numerous complaints to the Council and the care provider about Mrs B’s care including concerns about carers leaving after only being there for a few minutes, their failure to provide medication, food or take care of her dog. Mrs A disputes Mrs B had capacity to made decisions for herself about where she should live and wants a full investigation why the Council did not follow up concerns she raised about carers or move Mrs B when she and her GP advised.

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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 council 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 and considered her comments on it.

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What I found

4. Mrs A complained to the Council in 2016 when Mrs B fell downstairs fracturing her hip. Mrs A said the Council should move Mrs B to more suitable accommodation as she was a high risk of falls.
5. Mrs A says Mrs B fell down the stairs again in 2017 and was hospitalised. Sadly she passed away from the injuries she sustained in the fall.
6. The Council says it responded to Mrs A’s MP’s concerns in 2015 and her complaints in 2016. It did not uphold her complaint and explained Mrs B wished to remain in her own home. Mrs A says Mrs B lacked capacity to make this decision.
7. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:

• Because he makes an unwise decision.
• Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• Before all practicable steps to help the person to do so have been taken without success.

8. The Ombudsman could not say Mrs B lacked capacity to make decisions about where she should live in 2016 and 2017.
9. Mrs A says she complained to the Council following Mrs B’s death but was not aware until she attended a Skype meeting in April 2018 that the Council had not treated it as a formal complaint. Mrs A says she sent numerous emails to the care provider who refused to respond to her claim of negligence.
10. Mrs A complained to the Council in May 2019 and received a response in June. It acknowledged her frustration regarding the care provider’s decision not to respond to her further and offered £500 for the time and trouble she has been put to.
11. Mrs A says she wants the Council to be accountable for its actions regarding the care Mrs B received. Mrs A says she did not come to the Ombudsman sooner because she was pursuing a complaint with the Council.
12. 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.

13. Mrs A knew of the concerns regarding Mrs B’s care provider in 2016 and 2017. Mrs A says she was neglected by her care provider, which ultimately resulted in her death.
14. The concept of negligence or breach of a duty of care is primarily a legal concept and not an administrative issue and does not, therefore, fall within the scope of an Ombudsman investigation. The Ombudsman cannot make a finding of negligence or decide or enforce damages. If Mrs A wants a finding of negligence or breach of duty, she will need to take legal action.
15. The Ombudsman will not exercise his discretion in this case. This is because any injustice throughout this period was largely Mrs B’s and, sadly, as she has died, there is now no suitable remedy to any fault an investigation might uncover. Mrs A could have come to the Ombudsman before now if she was unhappy with Mrs B’s care or the Council’s responses to them.

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Final decision

16. The Ombudsman will not investigate this complaint. This is because Mrs A could have come to the Ombudsman sooner if she was concerned about Mrs B’s care or the Council’s responses to her concerns. There is no good reason to disapply the law in this case.

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Investigator's decision on behalf of the Ombudsman