Decision : Upheld
Decision date : 04 Jul 2017
The Ombudsman's final decision:
Summary: It was fault for the Council to take 10 extra months to reply to Ms X’s representative’s Letter of Claim and complaint. That caused injustice requiring a remedy. Ms X and her solicitor Mr Y have pursued compensation from the Council for Ms X, related to her late mother Mrs X’s care provision and funding. Legal action was and remains the appropriate route for them to seek such compensation. The Ombudsman does not recommend compensation payments. It is unlikely we could add to previous investigation of Mrs X’s care. We cannot make a finding on Ms X’s complaint that the Council’s reply to Mr Y’s Letter of Claim was inadequate.
- Ms X was her mother Mrs X’s unpaid carer from 2001 to 2007. In 2007 Ms X became her mother’s paid carer. Mrs X sadly died in May 2014.
- Her solicitor Mr Y complains on behalf of Ms X that the Council:
- failed to adequately fund Mrs X’s care in accordance with its own care plan;
- unreasonably determined that a Letter of Claim was inadequate, and not sufficiently detailed for the Council to understand Ms X’s case;
- took 13 months to give its substantive reply to his Letter of Claim.
What I have investigated
- I have investigated complaint c) only. I explain why I have not investigated issues a) and b) at the end of this statement.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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 provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we could add to any previous investigation by the Council, or
- we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
- We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mr Y;
- made enquiries of the Council and considered the comments and documents the Council provided;
- issued a draft decision, inviting comments from Mr Y and the Council, and considered replies received;
- consulted with the Ombudsman and an Assistant Ombudsman.
What I found
- Mrs X was diagnosed with Alzheimer’s in 2007. Ms X became her mother’s carer once Mrs X’s condition worsened. The Council assessed Mrs X’s care needs and determined she should have 10 hours of care per week. Mrs and Ms X challenged the decision and the provision increased to 14 hours per week. This included money for a sitter to give Ms X respite from her new role.
- After initially refusing, Council agreed to Mrs X receiving direct payments to fund Ms X’s care role. This exceptional arrangement was in place on the understanding that Mrs X wanted Ms X to provide her care and would not accept care from anyone else.
- From 2007 to 2012, the Council did various assessments of Mrs X’s condition and care needs. From the first assessment, Ms X disagreed with the 14 hours of funded provision. Ms X felt the Council’s social workers were obstructive and their involvement caused her and her mother distress. She challenged the Council’s assessments from then on and instructed a legal representative, Mr Y, to deal with the Council. The Council’s assessment that 14 hours of care per week was the correct amount did not change.
- In April 2014, the Council’s Adult Social Care Service became managed by the NHS, through the Staffordshire and Stoke-on-Trent Partnership NHS Trust (SSOTP).
- Mr Y sent a Pre-Action Protocol letter to the Council in early September 2013. In late September 2013 the Council made an ex gratia offer of £18,844 to Mrs X. Mr Y queried the calculation used to reach the figure. The officer who had made the offer was away. The other officers could not see the basis of the absent officer’s calculations. After eight days, the Council withdrew the offer.
- Mrs X continued to instruct Mr Y in preparation for a possible Judicial Review action against the Council. Ms X was included in the action as a “Litigation Friend”, not a claimant. Mr Y wrote another Pre-Action Protocol letter to the Council in December 2013. The letter sought:
- an increase in care hours to 60 per week,
- details of a local home which could give Mrs X the required care for the same cost of the 60 hours per week; and
- an offer of compensation for the financial loss caused by claimed under-provision of care since 2007.
Delay in dealing with the August 2015 letter
- I have considered the evidence to assess the Council’s involvement between August 2015, when Mr Y lodged the Letter of Claim, to September 2016 when the Council replied. I am satisfied the evidence shows:
- the Council was directly responsible for the actions of the SSOTP when the Trust was acting on the Council’s behalf . This was from 2012 onwards in respect of adult social care services. In any event, the Council’s legal department was aware of the 7 August claim letter by 9 September 2015;
- while the Council was not involved in any consideration of the letter from mid‑September 2015 to June 2016, the matter did fall for the Council to consider and reply;
- once the letter was referred back to the Council in June 2016, its legal team took about 10 weeks to respond.
- I consider this fault has led to a significant injustice to Ms X. The delay caused an extended period of uncertainty about her claim, and unnecessary distress and inconvenience, time and trouble.
- I have considered Ms X’s injustice up to 1 September 2016. Since then, it has been for Ms X, guided by her representatives, to decide how to reply to the Council’s response, which invited Mr Y and Ms X to further explain her claim.
- To acknowledge the injustice caused by the avoidable delay in responding to her representative’s 7 August 2015 letter, the Council agreed to pay Ms X £300.
- I understand from Mr Y and Ms X that the IIO’s recommended payment to Ms X for time, trouble and inconvenience also remains outstanding. The Council has agreed to pay that £750 sum.
- There was fault by the Council causing an injustice which requires a remedy. I consider the complaint resolved by the agreed remedy and have completed my investigation.
Complaint a) - Alternative route and Ombudsman’s discretion
- In respect of complaint a), I do not consider we should investigate this part of the complaint further.
- Ms X is claiming significant financial losses of £60k as her mother’s carer, which she says was caused by the Council under-providing for her mother. I consider such a claim would be best served by legal action.
- I note Mr Y has stated that his client now “wished to pursue and has opted to pursue a complaint as opposed to court proceedings”. The history of the matter clearly indicates Ms X and Mr Y’s belief that their pursuit of redress, up to the pointing of “opting” to complain to the Ombudsman, was entirely suited to legal action. It is not the complainant’s decision to “opt” for an Ombudsman investigation when the evidence shows they have previously considered the correct route for the redress they seek is the legal one.
- We may decide not to start or continue with an investigation if we think the issues could reasonably be raised within a court of law. I consider it is reasonable on the facts of this case for Ms X to pursue this matter to court, as she has acted to do previously. I have decided not to continue to investigate complaint a) because the legal route gives Ms X the most appropriate route for redress here.
- I note Mr Y believes the Council’s 1 September 2016 letter refused to further consider Ms X’s compensation claim. The Council’s September 2016 letter was not a rejection or refusal of Ms X’s claim. The letter invited Mr Y to further explain Ms X’s claim, asking him to “properly particularise the position”. I recognise Mr Y considers the Council responded in this way to delay. But it is for Mr Y and Ms X to take the next action in any future pursuit of Ms X’s claim for compensation.
- The evidence indicates Ms X’s action against the Council has focused on the pursuit of compensation. The Ombudsman does not recommend awards of compensation such as a court can order. I consider the outcome Ms X has sought cannot be achieved by an Ombudsman investigation.
- I have also taken into account here that the Council conducted a detailed independent report into the care issue in 2014. Mr Y has stated that it would be wasteful for the Ombudsman to repeat the investigations of the 2014 IIO report and he confirms Ms X does not ask for such a repeat investigation. I do not consider investigation by the Ombudsman would achieve any added clarity regarding the events between 2007 and 2014 as already detailed in the IIO’s 2014 report.
- I note Ms X disagreed with the report. But instead of complaining to the Council, and despite this disagreement with it, Ms X and Mr Y decided to pursue the matter as a claim for compensation, as the report had recommended. If Ms X disagreed with the report, she could have complained to the Council about it. The report’s cover letter of 1 December 2014 invited her to do this.
Letter of Claim
- In respect of complaint b), it is not our role to judge on the adequacy of a Letter of Claim. The Council’s legal team reached its view the letter did not allow them to assess the claim made against the authority. That is a professional judgement they are entitled to take. The way to challenge or test that position is through the legal process, not through our complaint process.
- If Ms X wishes to pursue compensation by responding to the Council’s September 2016 letter, it is for her to decide to do so, taking advice from her representatives as appropriate. We cannot intervene in that process.
Investigator's decision on behalf of the Ombudsman