Summary: The Ombudsman will not investigate Ms B’s late complaint about the Council’s decision not to investigate her concerns under its responsibility for safeguarding vulnerable adults, the time it took to consider her complaints and way it considered them. This is because it is unlikely he would find fault with the Council’s decision not to consider her complaint as a safeguarding matter. It is unlikely the Ombudsman could add to the Council’s responses and Ms B could have come to the Ombudsman in 2018 if she was concerned with the Council’s decision not to investigate her safeguarding concerns. Where he is not investigating the substantive matter, he will not normally consider how the Council handled the complaint. That is the case here.

The complaint

1. Ms B complains about the medical treatment of her late mother, Mrs C, and the Council’s refusal to investigate her concerns under its responsibility for safeguarding vulnerable adults, the time it has taken to consider her complaints and the decisions it has taken. Ms B says the Council should investigate Mrs C’s care provider under its safeguarding responsibilities.

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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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34A, as amended)

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How I considered this complaint

5. I considered the information and documentation Ms B and the Council provided. I sent Ms B a copy of my draft decision and considered her comments on it.

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What I found

6. Mrs C moved into the home in February 2017 and died in August 2017. Ms B complained to the Council in June 2018 about the care her mother received from her care provider and asked it to consider her concerns under its responsibility as Lead Safeguarding Authority.
7. The Council advised Ms B it would not consider her complaints as a safeguarding matter and explained in its response dated August 2019:

‘The purposes of a safeguarding enquiry from start to finish is to manage risk to the individual or others and to investigate concerns raised which will then lead to a possible ongoing safeguarding plan for an individual. Based on the fact that a safeguarding plan is not required and there were, and continue to be, no wider concerns about the care home, we chose not to open a safeguarding case in July 2018 when we first received the complaint from yourself’.

8. The Council explained in its response in August 2019, which Ms B received in November 2019 that she had received a response from the Clinical Commissioning Group (CCG) explaining what it had done following it investigation into her complaint and was satisfied it had taken necessary action. The Council reiterated the findings of the CCG. It said:

• The home has appointed a Deputy Manager to provide daily operational oversight, which includes managing medication issues and ensuring these are investigated and appropriate action taken.
• There is now a Clinical Governance Committee in place, which meets regularly and oversees the themes arising from incidents and complaints and actions being taken. They have structures in place to share learning across the homes, including bulletins.
• A Best Practice and Compliance Manager has been appointed with a remit of ensuring learning and improvement takes place across the homes managed by [the care provider]. The post reports to a newly appointed Head of Care Services.
• They have developed a customer experience training programme which is currently underway.
• They recognise their initial response was not satisfactory in tone, or in addressing your concerns, and have acknowledged and apologised for this. They have used the learning from this to improve their complaints process.

9. Ms B was unhappy with this response and asked the Council to review it. She received a response from the Council in February 2020. The Council acknowledged there were delays in sending her the first response and partly upheld her complaint about delays, however, it said it will not investigate further. It said the CCG’s response mirrored what would have happened if it had investigated. Ms B has asked the Ombudsman to consider her concerns.
10. Mrs C’s care was funded by the NHS. Mrs C’s care is not a matter the Ombudsman can consider. Ms B says the Council should have considered the concerns she raised as a safeguarding matter.
11. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. The Ombudsman must consider whether there was fault in the way the decision was reached. The Council considered Ms B’s concerns and decided there was no immediate safeguarding risk as Mrs C had since died so did not meet the criteria for a safeguarding investigation. The Council also explained if it had investigated it would have made similar findings to that of the CCG’s own investigation. The Ombudsman could not say this is fault.
12. Ms B complains about the time it took the Council to consider her complaint and the way it considered it. The Council has apologised and the Ombudsman is satisfied this remedies any injustice caused by the delay. Where the substantive matters do not warrant investigation, he will not normally consider the Council’s handling of a complaint.

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Final decision

13. The Ombudsman will not investigate this late complaint. This is because it is unlikely he would find fault with the Council’s decision not to consider Ms B’s complaint as a safeguarding matter. It is unlikely the Ombudsman could add to the Council’s responses and Ms B could have come to the Ombudsman in 2018 if she was concerned with the Council’s decision not to investigate her safeguarding concerns. Where he is not investigating the substantive matter, he will not normally consider how the Council handled the complaint. That is the case here.

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Investigator's decision on behalf of the Ombudsman