Summary: We will not investigate a complaint about a how a Council made a Best Interest decision because there is not enough evidence of fault in the process if followed.

The complaint

1. Mrs X complains about London Borough of Croydon (the Council) and its decision-making following a Best Interest meeting to discuss the discharge destination for her mother, Mrs Y.
2. Mrs X considers the Council ignored the views of some family members and feels it predetermined the decision.
3. Mrs X says the decision to discharge Mrs Y to a nursing home led to Mrs Y experiencing increased anxiety and her health declining more quickly. She died a few weeks later.
4. Mrs X wants the Council to accept its mistakes, learn from these and apologise for the effect this had on her family.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
6. 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)

Back to top

How I considered this complaint

7. I considered information provided by the complainant and the Council, including relevant records.
8. I considered the Ombudsman’s Assessment Code.
9. The complainant now has an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

Back to top

My assessment

10. Mrs Y was living at home with the support of carers. She had a hospital admission in February 2024 after she suffered a stroke (brain injury). She was medically ready to leave hospital by March 2024. A Mental Capacity assessment showed Mrs Y did not have the ability to understand decisions about her discharge from hospital. As no family member help Lasting Power of Attorney for health, a Best Interests meeting was held. This was inconclusive and a further Best Interest meeting took place a few days later.
11. Mrs X wanted Mrs Y to return to her own home with 24-hour nursing care. However, the outcome of the Best Interest meeting was that Mrs Y should move into a nursing home.
12. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. A key principle of the MCA is that any decisions made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Guidance on the steps organisations should take when considering whether someone lacks mental capacity and how to consider what is in their best interests is set out in a Code of Practice (the Code).
13. The record of the Best Interest meeting shows the Council consulted health and social care staff and family members. As one of Mrs Y’s daughters could not attend the meeting, she submitted a written statement setting out her views.
14. No one held Power of Attorney (legal power to make decisions on a person’s behalf if they lack capacity) for health matters and previous discussions had failed to agree a way forward. The Council therefore arranged for Mrs Y to have an independent advocate. This is in line with the Code.
15. The Best Interest meeting notes were thorough and show detailed discussion about the available choices. Three alternatives were discussed and explored during the meeting. These were for Mrs Y to return to her own home with the care package she had before her hospital admission; to return home with an increased care package; and to move into a nursing home.
16. Mrs Y’s needs had increased significantly sine her hospital admission and therefore the health and social care professionals considered her previous care package could not meet her needs. They considered if Mrs Y was to return to her own home, she would need two carers 24-hours a day. Concerns about having enough cover, including breaks for carers were discussed. The cost of this was also significantly higher than a nursing home.
17. Mrs Y’s daughter who submitted the written statement held Power of Attorney for finance (responsibility for managing finances for someone without capacity). She raised concerns about the cost of nursing care at home. She also felt a nursing home could meet Mrs Y’s needs better.
18. The meeting notes show the health and social care professionals considered Mrs Y needed 24-hour care. Having gathered all information, the Council reached a decision that it was in her best interests for this to be provided in a nursing home setting.
19. The records indicate the Best Interest process was followed in line with the Code. The discussions appeared to have been thorough and considered all viable options. Additionally I have seen no evidence to support the Council predetermined the decision. While I recognise Mrs X and her brother do not agree with the outcome, the decision-maker used their professional judgement to decide that moving to a nursing home was in Mrs Y’s best interests.
20. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. I have not seen indications of fault with by the Council.

Back to top

Draft decision

21. Subject to any comments Mrs X might make, my view is we should not investigate this complaint. There is not enough evidence of fault with the decision-making process.

Back to top

Investigator's decision on behalf of the Ombudsman