Summary: The Ombudsman will not investigate Mrs A’s complaint about the Council’s decision to treat her mother-in-law, Mrs B, as having capacity to decide where she should live in 2007 or its failure to complete a Deprivation of Liberty Safeguards (DoLS) assessment in 2009. This is because the Council’s actions have not caused Mrs B a significant enough injustice to warrant an Ombudsman investigation.

The complaint

1. Mrs A says her mother-in-law, Mrs B lacked capacity in 2007 when she was placed in a care home following discharge from hospital. Mrs A says Mrs B did not choose her own placement and should have had a Deprivation of Liberty Safeguards (DoLS) assessment when DoLS were introduced in 2009. Mrs A says Mrs B was taken against her will to live in the home.

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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 discussed her comments on it with her.

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What I found

4. Mrs A says Mrs B lacked capacity to make a decision about where she should live in 2007 when she was placed in a care home. Mrs A says Mrs B should have been assessed as being deprived of her liberty under a DoLS authorisation when it came into effect in April 2009.
5. The Council says Mrs B with support from her family decided she wanted to live in the home in 2007 following discharge from hospital and its assessment at the time recorded this. The assessment says Mrs B had capacity to make this decision at the time.
6. Mrs A says this view contradicts Mrs B’s consultant report dated February 2008 that she ‘does not have the mental capacity to manage any of her affairs, including financial and for complex decisions’.
7. The care provider wrote to Mr A in April 2016 advising it had referred Mrs B for a DoLS application. The Council says the form was unsigned and can find no evidence it was received. It acknowledges its records show a DoLS assessment was carried out in March 2017 identifying Mrs B lacked capacity which should have triggered a referral. The Council says a further referral was received in May 2018 and an assessment completed in December 2018. A DoLS authorisation was put in place for Mrs B in January 2019.
8. Mrs A says DoLS procedures were not properly followed. The Council has explained Mrs B was deemed to have capacity to decide where she wanted to live in 2007.
9. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that s/he lacks capacity. Mrs A says Mrs B’s consultant assessed her as lacking capacity to make complex decisions including her finances, however, the consultant’s assessment did not say she lacks capacity to decide where she should live.
10. The Council’s assessment says Mrs B had capacity and wanted to live in the care home. The Ombudsman could not make a finding on Mrs B’s capacity in 2007.
11. The care provider advised Mr A in 2016 it was referring Mrs B to the Council for a DoLS assessment. The Council says it has no record of a referral in 2016. Mr A could have come to the Ombudsman sooner if he was concerned the Council had not assessed Mrs B in 2016 as he knew of the referral in April 2016. There is no good reason for the Ombudsman to disapply the law to investigate this point now.
12. The Council has acknowledged the delay in completing a DoLS authorisation when Mrs B was assessed in March 2017 and December 2018 as lacking capacity to decide where she should live and has apologised for the fault. The Ombudsman could achieve no more than this even if he investigated. The delay in authorising the DoLS has not caused Mrs B any significant injustice. She was living in a home of her choice and there is no evidence that she wanted to move to a different home.
13. Mrs A says Mrs B did want to leave the home but was stopped from leaving even though there was no DoLS in place. Mrs A could have complained to the Council at the time if she felt Mrs B was being detained unlawfully. The Ombudsman could not make a finding on this point now.,

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Final decision

14. The Ombudsman will not investigate this complaint. This is because the Council’s actions have not caused Mrs B a significant enough injustice to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman