Summary: The Ombudsmen will not investigate Ms X’s complaints. Most of her complaints about Cheshire & Wirral Partnership NHS Foundation Trust and Wirral Clinical Commissioning Group are out of time. The Ombudsmen are also unlikely to find fault with her other complaints about Wirral Metropolitan Borough Council and her son’s residential placement.

The complaint

1. Ms X complains on behalf of her son, Y. She complains that:
1. Cheshire & Wirral Partnership NHS Foundation Trust’s (the Trust) doctor did not assess Y at her home in 2014.
2. The doctor wrongly diagnosed Y with a moderate learning disability.
3. The Trust’s psychology team inappropriately discharged Y in 2015.
4. The Trust’s occupational therapist did not carry out a sensory assessment of Y.
5. The Trust has not provided appropriate training to manage Y’s challenging behaviour when he stays with her.
6. Y does not have a person-centred care and support plan at his residential placement or when he stays with her.
7. Wirral Clinical Commissioning Group (the CCG) did not consider her views during a continuing healthcare (CHC) assessment in 2017.
8. A doctor was derogatory in a letter to her 2016, which was inappropriate.
9. The Trust’s learning disability nurse told Ms X to complain about her because she would not provide the support Ms X sought.
10. Staff at the residential placement (and a social worker for Wirral Metropolitan Borough Council) are hostile, unprofessional, and derogatory.
11. She has not had any input into decisions about Y’s residential placement.
12. Staff at Y’s residential placement have not recorded his cognitive absences.
2. Ms X says the organisations lack of support has impacted Y’s wellbeing and understanding. Also, it led Y to attack Ms X at home and in the community. Ms X also said the attitude of staff upset her.
3. Ms X would like the organisations to provide her with a direct payment and personal budget, so she can pay for the support she and her son need. She would also like a full apology and compensation to recognise the impact of its failings on them.

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The Ombudsmen’s role and powers

4. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4))
5. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe it is unlikely they would find fault, or they cannot achieve the outcome some wants. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. The Ombudsmen will not generally investigate a complaint unless they are satisfied the matter has been brought to the relevant organisation’s attention and that organisation has had a reasonable opportunity to investigate and reply to the complaint. (Local Government Act 1974 section 26(5), as amended and Health Service Commissioners Act 1993, section 9(5))

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How I considered this complaint

8. I have considered information Ms X has provided in writing and by telephone. Ms X had an opportunity to comment on my decision.

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What I found

Background

9. Y has autism, a moderate learning disability and lacks mental capacity.
10. In February 2015, Ms X complained to the Trust about parts a) to f) (in paragraph 1). A year later, the Trust did not uphold Ms X’s complaints and referred her to the Parliamentary and Health Service Ombudsman (PHSO).
11. In February 2017, the Trust met with Ms X to discuss the same complaints. At the same time, the CCG decided Y was not eligible for CHC. CHC is a package of care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. The CCG told Ms X what to do if she was unhappy with its decision. In late February, the CCG responded to Ms X’s complaint parts a) to f). The CCG did not uphold her complaints and referred her to PHSO.
12. Later in 2017, the Court of Protection decided Y should be cared for in a residential placement. It also said Ms X should have contact with their son.
13. In May 2018, Ms X complained again to the CCG about parts a) to g). Two months later, Ms X complained to PHSO about the Trust’s support going back to 2014. PHSO said it would not investigate Ms X’s complaint. Then, Ms X was still complaining to the Trust and PHSO said she should wait for the Trust to provide its response.
14. In December 2018, the Trust did not uphold Ms X’s complaints. It referred her to PHSO. Ms X remained unhappy and sought a meeting, which it held in January 2019.
15. In January 2019, Ms X complained again to the CCG that she was unhappy with the result of her son’s CHC assessment in February 2017. The CCG said it had already explored her concerns and referred her to PHSO.
16. Between January and June 2019, the Trust tried to arrange a meeting with the CCG and Ms X. The CCG did not attend as it had addressed her complaints.
17. In July 2019, the Trust provided an independent response to Ms X’s complaint. It did not uphold her complaints. It referred her to the Local Government and Social Care Ombudsman (LGSCO), and back to the Court of Protection. Ms X remained dissatisfied with the lack of support for Y and communicated that to the Trust and the Council. In November 2019, the Council and CCG jointly responded to Ms X, considering her same issues.

Analysis

Complaints a) to g)

18. I consider part a) to f) of Ms X’s complaints are late.
19. The Trust addressed these complaints first in February 2016. The Trust and CCG continued to respond to Ms X’s complaints between 2016 and 2019. However, I consider Ms X should have complained to PHSO sooner than she did, within 12 months of February 2016. The Trust referred Ms X to PHSO if she was unhappy with its response.
20. I asked Ms X why she took until July 2018 to complain to PHSO. She told me the organisations involved significantly delayed handling her complaint. She said she was not at fault for any delays approaching PHSO. I disagree with this. I understand the Trust and the CCG continued to address Ms X complaints. However, the Trust and CCG’s position did not change on parts a) to f). Ms X should have complained to PHSO sooner than she did. I do not consider Ms X has provided an exceptional reason I should consider complaints a) to f) at this late stage.
21. I also consider Ms X’s complaint about part g) is late.
22. Ms X told me the CCG did not consider her views during the CHC assessment in February 2017. From the evidence I have seen, the first time Ms X complained about that assessment was in May 2018. Again, Ms X has not provided an exceptional reason to explain why it took her over 12 months to complain about this part of her complaint.

h) The doctors 2016 letter

23. I do not think it would be proportionate to investigate this complaint.
24. I have not seen a copy of this letter. However, Ms X’s claimed injustice the letter was upsetting is not significant enough to warrant an investigation by the Ombudsmen.

i) The learning disability nurse’s comments

25. I do not think it would be proportionate to investigate this complaint.
26. The conversation happened four years ago, and I would not likely find evidence of independent witnesses to the conversation. Therefore, I consider I would not likely find fault with the learning disability nurse’s comments.

j) The attitude of staff at Y’s residential placement

27. For the reasons set out in paragraph 26, I consider I would not likely find fault with the attitude of staff at her son’s residential placement.

k) The lack of input into decisions about Y’s residential placement

28. The Court of Protection makes decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions.
29. I cannot consider this part of Ms X’s complaint.
30. The Court of Protection decided where Y should live. Ms X is clearly unhappy with how the Court of Protection has considered her views in that decision. Therefore, she should raise those concerns with the Court of Protection.

l) Monitoring cognitive absences

31. Cognitive absence seizures are times when someone with cognitive impairment may lose awareness and simply stare. The seizures can last for a few seconds and be mistaken for daydreaming. The seizures are commonly linked to epilepsy.
32. In 2017 the Trust told Ms X there was no evidence epilepsy caused Y’s absences.
33. I will not investigate this part of Ms X’s complaint.
34. The Trust has provided evidence it investigated Y’s cognitive absences and did not find a neurological cause for them. The Trust did not make any recommendations to care staff to monitor cognitive absences. Therefore, I will most likely not find fault with Y’s support staff at the residential placements for not monitoring cognitive absences.

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Final decision

35. I consider parts a) to g) of Ms X’s complaints are out of time.
36. I do not consider Ms X suffered a significant injustice to warrant an investigation into part h).
37. I do not think it would be proportionate to investigate parts i) and j). This is because of the length of time that has passed, and the small chance of finding indepdent witnesses.
38. I cannot consider part k). She should raise her concerns to the Court of Protection.
39. I would not likely find fault with part l). The Trust did not recommend that Y’s care staff monitor his cognitive absences.

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Investigator's decision on behalf of the Ombudsman