Summary: We will not investigate this complaint about adult social care. We cannot settle the dispute about what is in the person’s best interests and where she should live. So, it is unlikely that an Ombudsman investigation would achieve a different outcome, and we cannot say the person must return home. The court is better placed to consider this complaint as it can decide where the person should live.

The complaint

1. Mr G said the Council falsely applied safeguards, denying his relative, Ms H, the right to live at home, and not properly explained why. Mr G said there has been serious abuse of Ms H at the care home, he cannot visit, and he fears for Ms H’s safety. It is devastating for the couple to be kept apart, and they want Ms H to return home.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2) and 34C(2), as amended)

3. We have accepted Mr G as suitable to complain on behalf of Ms H.
4. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. 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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. The Council is responsible to meet Ms H’s adult social care needs and does so by arranging a placement in a care home; Ms H pays the full cost.
11. Mr G and Ms H do not want Ms H to live at the care home. The Council has followed the correct processes to assess Ms H does not have capacity to decide where to live, and to make decisions in her best interests. The Council has explained the reasons for the decision to Mr G. The care provider has restricted Mr G’s visits with Ms H and has fully explained its reasons for this.
12. We cannot criticise the Council’s or care provider’s decisions about what is in Ms H’s best interests, or the best interests of other residents and care staff. Mr G disagrees with these decisions, but there is not enough evidence of fault in the process the organisations followed.
13. While we appreciate how upsetting this is for Mr G and Ms H, we cannot achieve the outcome they want, of Ms H returning home. The Court of Protection can decide what is in Ms H’s best interests where there is a dispute and can decide where she should live. So, the court is better placed to consider this complaint.
14. Since raising his complaint with us Mr G has raised concerns about what the care home is charging Ms H for. I have nothing to show Mr G has put this complaint to the care provider or Council. We must allow it the opportunity to consider and respond to any complaints. Although the complaint is about the care home charges, because the placement is arranged by the Council it remains responsible; actions of the care home are actions on behalf of the Council.
15. Mr G should raise any concerns about Ms H’s care and treatment with the Council’s adult social care team responsible for meeting her needs. Any concerns about abuse should be raised with the Council’s safeguarding team and could also be raised with the police. I do not have evidence these specific concerns have been raised with the Council and responded to.

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Final decision

16. We will not investigate Mr G’s complaint because it is unlikely an Ombudsman investigation would achieve a different outcome; we cannot achieve the sought outcome for Ms H to return home. The court is better placed to consider this complaint, because the Court of Protection can settle the dispute about what is in Ms H’s best interests and where she should live.

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Investigator's decision on behalf of the Ombudsman