Summary: We will not investigate Mr B’s complaint that the Council should reimburse him monies paid for his wife’s, Mrs B’s care in 2018. This is because the Council remedied the fault in 2018 and there is no good reason to consider this late complaint now. Mr B can ask the Clinical Commissioning Group (CCG) to consider a retrospective appeal for CHC funding if he believes Mrs B should have been entitled to free health care during a period of time the NHS said she was not.

The complaint

1. Mr B says the Council’s assessment and review of his wife’s care needs was flawed and her Continuing Health Care (CHC) funding should not have been withdrawn in 2017. Following a complaint in 2018, the Council agreed to reduce the debt from £5,358.54 to £2,136.36 which Mr B paid in September 2018, however, Mr B says following legal advice he has been advised to appeal the amount paid. Mr B says the Council should pay back the £2,136.36 paid in care fees and pay the £600 he paid in legal fees. Mrs B’s CHC funding was reinstated in 2018.

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The Ombudsman’s role and powers

2. 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)
3. The Council 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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• 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)

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34A, as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.
7. The complainant now has an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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My assessment

8. The Council considered a complaint on behalf of Mrs B in 2018 and accepted it had not clearly advised her of the hourly rate she could pay carers providing care under a Direct Payment agreement. It agreed, given Mrs B had paid a higher amount, and did not know there was a standard rate, to backdate the difference between the two rates and reduce the outstanding bill to £2,660.54. Mrs B’s representative was advised of her right to come to us at the time. We consider the injustice has been remedied regarding this point.
9. It is not an administrative function of the Council to decide whether a person is eligible for CHC funding, nor can the Council decide not to provide CHC funding. In the absence of evidence from the NHS confirming Mrs B was eligible for CHC funding between 2017 and 2018, there is no fault with the Council for charging Mrs B for care it provided during this period.
10. If Mr B has evidence that Mrs B would have been eligible for CHC funding during the period she was not awarded it, he can ask the NHS to consider a retrospective application.
11. Information about the NHS CHC funding can be found on the website below.

https://www.gov.uk/government/publications/national-framework-for-nhs-continuing-healthcare-and-nhs-funded-nursing-care

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Final decision

12. We will not investigate this complaint. This is because the Council remedied the fault in 2018 and there is no good reason to consider this late complaint now.

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Investigator's decision on behalf of the Ombudsman