Summary: We will not investigate this complaint about the Council not applying for CHC funding for the complainant’s mother in law, resulting in insufficient funds to cover her care, and the commencement of legal action against the complainant’s sister in law. This is because there is no evidence of fault regarding the Council’s decision not to apply for CHC funding, and the legal action is out of our jurisdiction.

The complaint

1. The complainant, who I refer to here as Mr U, says that the Council:
• Did not apply for CHC funding for his mother in law, Mrs TT when she entered a residential care home. He says this led to there being insufficient funds to cover the cost of her care; and
• The Council unfairly started legal action to recoup the debt from Mrs TT’s daughter, Ms KT.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. 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)
5. 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’. 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 would find fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered the information provided by Mr U and by the Council. I have also sent Mr U a draft decision for his comments.

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What I found

7. Mrs TT and Ms KT owned a property jointly. However, when Mrs TT came out of hospital towards the end of her life, her dementia was too advanced for her to return home, and she entered a residential care home.
8. Mrs TT died in 2017 and the property was sold. As Ms KT does not have capacity to manage her own affairs, her deputies, Mr U and his wife (who is Ms KT’s sister), manage the proceeds on her behalf.
9. The Council informed Mr U that there was an outstanding debt for Mrs TT’s care fees, amounting to £36,000.
10. The Council further said that as Mrs TT’s estate is insolvent, it was going court to apply for an Insolvency Administration Order: this would declare Mrs TT’s estate bankrupt and require Ms KT to fund the outstanding fees.
11. However, Mr U says this would not fair on Ms KT, who needs the funds for her own care.
12. Additionally, he says the shortfall should have been met by Continuing Health Care (CHC) funding, and that the Council is at fault for not applying for it.
13. The Council has explained that it followed the correct procedures to check whether an application should be made, but concluded but there was no reason to complete a CHC checklist (which is the preface to CHC assessment) as there was no indication that Mrs TT primarily had health rather than social needs. Only substantial health care needs can trigger CHC funding.
14. Mr U has brought the complaint to the Ombudsman, but we will not investigate it. Although he says there is no evidence that Mrs TT did not have substantial health care needs, and that the family should have been involved in any discussion of such needs, this is not an accurate reflection of the process. It is not intended as a universal checklist, but only used where there is positive indication of need. Mr U has provided no evidence of such need being identified, which would have triggered the assessment. There is no evidence of fault in the Council not applying for CHC funding.
15. Additionally, the Council decided to take legal action to recover the debt, as described above. Although Mr U has now paid the outstanding fees, we cannot consider this issue as it is out of our jurisdiction due to the previous commencement of legal proceedings.

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Final decision

16. I will not investigate this complaint. This is because there is no evidence of fault by the Council in not applying for CHC funding, and the commencement of legal action by the Council is out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman