The Ombudsman's final decision
Summary: We will not investigate this complaint about the care Mrs Y received in 2022. Much of the complaint is late and there is not a good reason for the delay in bringing the matter to the Ombudsman. We could not achieve anything further by investigating other matters, and other bodies are better placed to consider parts of the complaint.
The complaint
Mrs X complained about the care home her mother (Mrs Y) was resident in until her death in 2022. She said Mrs Y suffered two unwitnessed falls, and that there were inadequate measures in place to manage this risk. Mrs X also raised several other concerns about quality of care, and also said she had not received a response from the Council after submitting a request for information. She said having had no closure on the matters has left her unable to grieve properly. She wants apologies and a review of the home’s suitability for people with dementia.
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 or care provider 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: we could not add to any previous investigation by the organisation, or 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 the complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information provided by the complainant and the Ombudsman’s Assessment Code.
My assessment
Mrs Y was resident in the care home in 2022. We investigated a complaint from Mrs X, her daughter, relating to how the care home managed a leg wound after Mrs Y suffered a fall.
Mrs X then asked us to investigate other matters she had not included in her earlier complaint to us. I have considered those issues here.
Mrs X’s complaint included several general concerns about the care provider, including, for example, the levels of cleanliness, doors and telephones not being answered and concerns the home withheld mail from residents. She also raised concerns about the process by which the Council had placed Mrs Y in the care home initially. All these issues are matters Mrs X knew about at the time, and it would have been reasonable for her to raise them with the care home and Council at that time, and us within 12 months. We will not now investigate these matters as they are late.
I have given more detailed consideration to whether we should consider Mrs X’s complaint about the care provider’s management of falls risk. While Mrs X was aware of one of the falls at the time, she indicates she was not aware of the other. She says she also did not know the full details of the falls until a later date, after she had obtained records from the care home. I have therefore exercised discretion to consider this matter further, as Mrs X likely did not become aware of the matter until early 2023.
The Council considered Mrs X’s complaint about the care provider’s management of falls risk. It stated Mrs Y had capacity to make decisions about assistive technology and was able to use her alarm bell. Mrs X questions the accuracy of this. We could not now say whether Mrs Y had capacity two years ago. The Mental Capacity Act (2005) makes clear the starting assumption is that a person has capacity unless evidence suggests otherwise. It also says one cannot assume someone lacks capacity based on their diagnosis alone.
The Council made recommendations to the care home about ensuring incidents were reported, both to it and to families. Its complaint response did not include an apology, in line with our guidance on effective apologies , relating to this. It is not proportionate for us to investigate this complaint further to pursue an apology alone, but it is open to the Council to contact Mrs X to apologise for this, following the principles in our guidance. Further investigation of this matter by us, however, would not ultimately lead to a different outcome.
The Care Quality Commission (CQC) is responsible for considering care providers’ registration status. We could not recommend a review of the care home’s suitability for people with dementia. It is open to Mrs X to contact CQC.
Mrs X also raised concerns she has not received a response to an information request she sent to the Council. The Information Commissioner’s Office (ICO) is best placed to consider complaints about how organisations handle requests for information. Mrs X says the ICO states on its website it cannot assist where the person whose data is being requested is deceased. I cannot find reference to this on the ICO’s website, however the data protection legislation does not apply to a person who is deceased. Any requests for information about someone who is deceased can be made under other legislation, including the Freedom of Information Act (2000). That is the legislation under which the Council would likely have considered Mrs X’s request, and the ICO considers complaints about freedom of information so it is open to Mrs X to escalate the matter to the ICO.
Final decision
We will not investigate Mrs X’s complaint because some matters are too late, we could not achieve anything further by investigating other matters, and other bodies are better placed to consider other elements of the complaint.
Investigator's decision on behalf of the Ombudsman