The Ombudsman's final decision
Summary: We will not investigate this complaint about delay completing an adult social care assessment for deprivation of liberty. This is because we could not say the outcome would be different despite that delay.
The complaint
Ms B says the Council failed to listen to her mother, Ms C’s wishes, when Ms C moved to a care home. Ms B says Ms C wanted to return home, and now wonders whether this might have been possible. Ms B says the Council gave her no information to understand the process. Ms B feels let down and like Ms C’s liberty has been taken.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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 there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In 2017 Ms C moved to a care home. Although the events took place more than 12 months ago it is likely Ms C did not have capacity to make a complaint, so we do not consider it a late complaint from Ms C. However, in historical cases it is more difficult to reach a firm and fair conclusion given the difficulty in proving causality over long periods of time and changes in the situation of those involved.
The Council says it was not involved in placing Ms C in a care home; the placement appears to have been privately arranged. The care home contacted the Council in 2017 and asked the Council to complete an assessment under the Deprivation of Liberty Safeguards (DoLS). The care home said Ms C agreed to move to the home and was not objecting to being there, but it thought Ms C’s mental capacity to consent to her continuing admission was fluctuating. The DoLS assessment is a safeguard to ensure the care is in the person’s best interests. An assessment will decide whether the deprivation of liberty is allowed to happen or not. In this case, the deprivation of liberty is about Ms C living in a care home where she is not free to leave.
Due to a shortage of staff to complete the assessment, it has taken the Council seven years to complete Ms C’s DoLS assessment. The Council accepts this is fault. The Council has a system for prioritising cases, which the Ombudsman would not criticise. Ms C was the lowest priority. The Council says it was never told Ms C wished to leave the care home. The Council has completed the assessment and authorised the DoLS.
The Ombudsman cannot say the outcome would be different but for the Council’s delay authorising Ms C’s deprivation of liberty. The Council’s records show Ms C, or family on her behalf, chose for Ms C to live in a care home. The Council was never made aware that Ms C was raising any objection to being there, and so there was nothing further expected of the Council.
It was open to Ms B to raise any concerns with the care home, or the Council, and to seek advice and support if she felt Ms C wished to return home and wanted to see if this was possible.
Final decision
We will not investigate Ms B’s complaint because further investigation would not lead to a different outcome. Although there was delay by the Council, we cannot say the outcome would be any different as there are too many variables spanning many years. Even if someone had voiced Ms C’s concerns to the Council it is possible Ms C may have remained living in the care home by choice or in her best interests. Ms C appears to still live in the care home now the DoLS process is complete.
Investigator's decision on behalf of the Ombudsman