Summary: We will not investigate Ms B’s complaint about the actions of the Council regarding communication with her about her late mother’s, Mrs C’s, care needs and Deprivation of Liberty Safeguards (DoLS). The arrangements for Mrs C were subject to orders from the Court of Protection and it was for the Court to consider any complaint that the orders were breached. Mrs C’s death in 2020 does not mean the Ombudsman can now consider what was properly for the Court. There is otherwise not enough evidence of fault with the actions taken by the Council to warrant an investigation by the Ombudsman.

The complaint

1. Ms B says the Council should have made an application to the Court of Protection (CoP) by April 2020 when it knew her late mother’s, Mrs C’s care needs were being met by a different provider to that when the order was made by the Court in May 2019. Ms B says the Council should have re-applied to the Court for a renewal of the authorised Deprivation of Liberty Safeguards (DoLS) when it expired on 20 May 2020 and should have considered her request for an Independent Best Interests Assessor. Ms B says failure to take the order back to court was an unlawful breach of a Court Order and the consequences, communications and restrictions of the deprivations imposed have impacted on her health and wellbeing.

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The Ombudsman’s role and powers

2. 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
• it is unlikely further investigation will lead to a different outcome, or

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

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How I considered this complaint

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

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What I found

4. Ms B previously complained to the Ombudsman about these matters. The Ombudsman decided Ms B should raise these concerns with the Court of Protection because they were subject to an order the Court made in May 2019. Mrs C died after the Ombudsman’s decision in June 2020, so there are no matters regarding Mrs C’s care and support for the Court to decide. That does not, however, mean we could now investigate what was not for us to investigate during Mrs C’s lifetime.
5. Ms B says she asked the Council to instruct an Independent Best Interests Assessor. The Council says it is unclear when Ms B requested this but believes she is referring to the DoLS Court Order which expired in May 2020. The Council explained it was in the process of re-applying to the Court in May 2020 but did not do this because of the Covid-19 pandemic situation which had affected all proceedings.
6. The Council explained although Mrs C’s care providers changed, there were no material changes to her care plan and no increase in her deprivation requiring it to be urgently taken back to court for a review. The Council confirmed the new care provider was aware of any safeguarding matters and passed on any new concerns when appropriate.
7. While Ms B is concerned matters did not go back to a court for a review, the Council has explained why this did not happen. The Court of Protection Order in May 2019 did not require the Council to apply to Court again to change the provider of Mrs C’s care. We could not say this is fault. Further investigation could not add to this or make a different finding of the kind Ms B wants.
8. Ms B complained about the responses she received from the Council when she advised it of her concerns regarding Mrs C’s health care needs. The Council explained following Ms B’s concerns it contacted Mrs C’s GP who were actively involved in her health care. We could not say this is fault. Further investigation could not add to this or make a different finding of the kind Ms B wants.
9. Ms B complained that she was not contacted by a Social Worker about Mrs C’s discharge from hospital on 8 June 2020. The Council says Ms B may have been misinformed about who would contact her. It advised Ms B by email on 8 June of Mrs C’s discharge from hospital. We could not say this is fault. Further investigation could not add to this or make a different finding of the kind Ms B wants.
10. Ms B complained she was not contacted by the Council to discuss her concerns about Mrs C or help her. Ms B says she felt forcibly isolated from Mrs C by decisions taken to cancel her visits near the end of her life.
11. The Court order of May 2019 set out where Mrs C should live and what contact she should have with Ms B. The Council explained on the day of the planned visit when Ms B was turned away, Mrs C’s GP decided because she was presenting as lethargic and sleepy, it would not be in her best interests for the visit to go ahead. The Council apologised for the late notice to cancel and acknowledged this would have been difficult for Ms B. We could not say this is fault because, even if the Court order did not prevent such a visit, nor did it say Ms B must be allowed to visit Mrs C under any circumstances. Moreover, the decision not to allow the visit was made by Mrs C’s GP, not the Council. Further investigation would be unlikely to add to this or make a different finding of the kind Ms B wants.

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Final decision

12. We will not investigate this complaint. The arrangements for Mrs C were subject to orders from the Court of Protection and it was for the Court to consider any complaint that the orders were breached. Mrs C’s death in 2020 does not mean the Ombudsman can now consider what was properly for the Court. There is otherwise not enough evidence of fault with the actions taken by the Council to warrant an investigation by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman