Summary: We will not investigate this complaint about the Council’s consultation correspondence about closing a residential care home. There is not enough evidence of fault to justify an Ombudsman investigation.

The complaint

1. Ms B says the Councils letter is discriminatory and affected the mental health of her relative, Ms C.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• 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))

3. 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)

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How I considered this complaint

4. I considered information provided by the complainant. I considered the Ombudsman’s Assessment Code. I considered the Equality Act 2010.

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My assessment

5. Ms C lives in a Council run residential home, which the Council plans to close. Ms C found the consultation letters distressing and discriminatory.
6. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
7. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
8. The ‘protected characteristics’ referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

9. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.
10. Organisations can often show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
11. The Council has fully considered the impact of its proposal to close care homes by an Equality Impact Assessment. The Council has followed the correct process to decide the matter. It has consulted with relevant people, considered the responses, and its Cabinet has decided.
12. I accept it is distressing for Ms C as the future of where she lives is now uncertain. However, despite this it is a decision the Council is entitled to take, and it has followed the correct process. So, the Ombudsman cannot question or criticise the Council’s decision, or its correspondence about the matter, even though it is upsetting for existing residents.
13. The Council continues to have a duty to meet Ms C’s eligible adult social care needs.

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Final decision

14. We will not investigate Ms B’s complaint because there is not enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman