Summary: The Ombudsmen will not investigate this complaint as it is unlikely an investigation would lead to findings of fault.

The complaint

1. Mr Z complains that Hertfordshire County Council (the Council) and Central London Community Healthcare NHS Trust (the Trust) refused his request for support to allow him to use the bath. He disagrees with the decision that equipment is not safe for him to use. Mr Z said he used the equipment without any problems when he had it on loan.
2. Mr Z also complains that when someone visited him to do an assessment they made inappropriate comments and were judgemental about him and his lifestyle. They commented about him living in a ‘middle class area’ and about him having a ‘nice car’ which he says is a mobility car. He says these remarks were unprofessional and not relevant to his assessment.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
4. 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
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered the papers Mr Z submitted to the Ombudsmen along with notes of conversations he had with colleagues, and spoke to him on the telephone. I considered papers we received from the Council and the Trust. I shared a confidential copy of a draft decision with Mr Z and considered the comments he provided on it.

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What I found

What happened

6. This chronology includes key events in this case and does not cover everything that happened.
7. In 2018 the Council granted Mr Z a Disabled Facilities Grant (DFG) for a level‑access shower and specialist toilet. The work was completed.
8. In July 2020 Mr Z requested support to allow him to bathe in a bath for health reasons.
9. A Trust Occupational Therapist (OT) visited Mr Z toward the end of August 2020. They agreed to arrange a loan of a standard bath lift and to complete an assessment with it.
10. The OT returned in early September 2020 after the bath lift had been delivered. They assessed Mr Z while he used the standard bath lift. The OT felt Mr Z could not use it safely and arranged for the lift to be removed and for an alternative piece of equipment – a reclining bath lift – to be installed for a further trial.
11. The OT returned to Mr Z’s home in the middle of September 2020 and assessed him while he tried the reclining bath lift. The OT continued to have concerns about Mr Z’s safety when using the equipment. The OT concluded it would not be safe for Mr Z to use it and recommended he continued to use the level-access shower. The Trust’s OT team then discharged Mr Z from its service.
12. On the day after the Trust OT’s third visit, a Council Community Care Officer (CCO) visited Mr Z in relation to his request. After learning of the Trust’s involvement the CCO said they would speak to the Trust OT. The CCO spoke to the Trust OT and noted their findings and conclusion.
13. Mr Z was dissatisfied with the outcome and continued to request support to use a bath.
14. In the middle of November 2020 a Council OT visited Mr Z to discuss his bathing needs. The Council OT agreed to discuss the situation with Mr Z’s GP.
15. The Council OT visited Mr Z again at the start of December 2020. They wrote to him around a week later and noted the content of the original OT assessment. The Council maintained that using the level-access shower was the safest option for Mr Z and greatly reduced the risk of falls in the bathroom.
16. Following a complaint to the Ombudsmen, Mr Z’s concerns were put to the Council and Trust. In early January 2021 the Trust wrote to Mr Z. It did not identify any failings in its assessment of Mr Z’s bathing needs. The Trust said it made every reasonable effort to support Mr Z’s use of the bath and made an appropriate decision that it would be unsuitable for him to do so.
17. The Council wrote to Mr Z in late February 2021. It did not identify any failings in its actions. The Council maintained that using the level‑access shower was an appropriate and safe option for Mr Z, and that using the bath was not required. The Council said if Mr Z considered buying one himself he should speak to a representative to arrange a visit to consider its suitability and safety.

Analysis

18. The courts have confirmed we have discretion to limit the scope of an investigation to key areas only and to be selective about the complaints we will address. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations – completing them when we consider we have enough evidence to make a sound decision and where we feel there is a reasonable prospect of finding failings which could be linked to a personal injustice.
19. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant health and social care organisations have to make. Therefore, when the Ombudsmen investigate complaints they consider the way in which organisations make their decisions and whether they followed a reasonable process and took account of relevant factors.
20. The evidence shows the Trust and Council made repeated visits to Mr Z’s property to discuss his needs and wishes. They arranged for trials of potentially useful equipment and supervised Mr Z while he used them. The evidence suggests the Trust OT only reached their professional judgement about the equipment’s suitability after these trials. In relation to this, Mr Z disputes that an OT from the Trust visited him and assessed him while he trialled equipment. However, the Trust has provided copies of contemporaneous notes the OT made of their three visits. On the basis of this evidence I am persuaded, on the balance of probabilities, these visits took place.
21. There is also evidence to show the Council also sought additional information from another health professional to supplement their understanding of Mr Z’s health and needs.
22. The evidence also suggests both the Trust and Council have given consistent explanations for their decisions. Further, the decisions about not supporting the use of a bath are based on relevant considerations about Mr Z’s safety and wellbeing.
23. As such, there are no clear indications that the Trust’s or the Council’s decision not to offer further home adaptations or equipment were made without a reasonable consideration of the situation. This, in turn, suggests it is improbable that an investigation would find fault on the part of either the Trust or Council.
24. Mr Z also raised concerns about what staff said to him in terms of irrelevant observations. As noted above, the decision about whether to support Mr Z’s use of the bath appears to be based on a consideration of his safety and physical ability to use equipment. Based on the evidence available at present, neither organisation appears to have relied on inappropriate considerations of Mr Z’s financial situation. As such, while Mr Z may have found the professionals’ comments distasteful and inappropriate, it does not appear an investigation would have a realistic prospect of establishing fault.
25. Overall, it is improbable that an investigation would lead to findings of specific, significant fault which could be directly linked to an injustice caused by the Council or Trust. As such, it would not be a proportionate use of the Ombudsmen’s resources to investigate this complaint.

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Decision

26. The Ombudsmen will not investigate this complaint and have closed the case.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman