Summary: We will not investigate this complaint about the content of adult social records and what the Care Provider said happened. This is because these actions did not cause the injustice of not seeing a family member after their death. We could not achieve the wanted outcome of correcting what the Care Provider said, or the Council’s or Care Provider’s case recordings.

The complaint

1. Ms C says when her father (Mr D) stayed at Elm House Care Home for a respite stay, the care home would not allow the family to visit. Even though the care home was saying Mr D was showing challenging behaviour and was not eating or drinking, it still would not allow family to visit. Mr D died after only nine days at the care home. Ms C says the care home told lies about the family, which resulted in a police investigation, and meant the family could not see Mr D after his death. Ms C says the lies and actions have affected her grieving her father, and she wants the Care Provider to admit the truth.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

3. We have accepted Ms C as suitable to raise a complaint about Mr D’s care. Ms C also claims her own injustice.
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. The Council commissioned Elm House care home, run by Elm House (UK) Ltd (the Care Provider) to meet Mr D’s adult social care needs. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
6. The Ombudsman investigates 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 may decide not to continue with 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 this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. We cannot provide a remedy to someone who has died.

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mr D went to Elm House care home for a short respite stay. Mr D died unexpectedly during his stay, which was a shock to his family. Because Mr D’s death was unexpected the Care Provider had to tell the police, and the coroner was involved.
11. Ms C feels the Care Provider told lies to the police and other bodies involved. Ms C says a professional told her the family could not see Mr D until investigations were complete.
12. I understand Ms C’s upset, and how it has affected her grieving process. But the Ombudsman could not say Ms C’s inability to see Mr D after his death was caused by the actions of the Council, or the Care Provider on its behalf. The Care Provider had a duty to tell the police, and the resulting investigations were because of Mr D’s unexpected death rather than anything the Care Provider had said.
13. Ms C wants the Care Provider to admit in writing it has lied. The Care Provider and Council have given thorough responses to Ms C’s complaint, and it is unlikely the Ombudsman could add to that or achieve anything further. The Ombudsman cannot recommend bodies should alter the records they made. Ms C can ask the various bodies to add her statement to their records to oppose what is written and to make anyone aware reading those files the contents are disputed.
14. The Information Commissioner’s Office (ICO) is the independent body set up to uphold information rights. You can challenge the accuracy of personal data held about you by an organisation, and ask for it to be corrected or deleted. The ICO may be better placed to consider this complaint and achieve the outcome Ms C wants to correct what is written about them.

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Final decision

15. We will not investigate Ms C’s complaint because the Council’s actions (or Care Provider’s on its behalf) did not cause the injustice of not being able to see Mr D after his death. That injustice was caused by other professionals outside the jurisdiction of the Ombudsman. It is unlikely we could add to the investigations already completed, we cannot achieve the outcomes Ms C wants, and the ICO may be better placed to achieve those outcomes.

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Investigator's decision on behalf of the Ombudsman