Summary: The Council was at fault for the way it refused to consider Mr B’s complaints. The reason it gave – that the complaints were about issues which were more than 12 months old – did not apply to all the complaints. The Council has agreed to look at them again.

The complaint

1. The complainant, whom I refer to as Mr B, complains on behalf of his mother, whom I refer to as Mrs C.
2. Mr B complained to the Council in July 2023 about various ways in which, in his view, it had made mistakes in Mrs C’s care. But the Council refused to respond to his complaints, saying they were too old (in that they were about issues which were more than 12 months old).
3. Mr B says the Council should have investigated his complaints because they spanned a period which ended only six months before he wrote to the Council.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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)

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How I considered this complaint

7. I considered information from Mr B and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

8. In March and November 2021, the Council completed assessments of Mrs C’s needs under the Care Act 2014.
9. In November the Council also held a meeting with members of Mrs C’s family and people involved in care. The purpose of the meeting was to discuss disagreements her children had about the suitability of her placement.
10. In December, Mrs C’s daughter and Mrs C’s relevant person representative (RPR) – who represented Mrs C in matters relating to the deprivation of her liberty – started the process of making a ‘section 21A’ challenge (under the Mental Capacity Act 2005) on Mrs C’s behalf. This challenge would have asked a court to review her care arrangements (as she was unhappy with them).
11. In January 2022, after receiving legal advice, the RPR withdrew the section 21A challenge.
12. The Council says it could have made a section 21A challenge itself, but it did not deem it necessary. It held a meeting in April with Mr B to discuss the challenge being withdrawn by the RPR.
13. In May, Mr B says he found out that Mrs C’s care home had not been taking her into the garden (although doing so was in her care plan). He says there were meetings about this over the following few months.
14. In December, the Council conducted a new assessment for Mrs C under the Care Act.
15. In January 2023, the Council told Mr B that it would not initiate a section 21A challenge on Mrs C’s behalf, as she was now happy with her care.
16. In July, Mr B made a complaint to the Council. He said:

1. The Council’s December 2022 assessment was nine months overdue.
2. In completing that assessment, the Council failed to have due regard to the Mental Capacity Act.
3. After agreeing to initiate a section 21A challenge on Mrs C’s behalf, the Council waited 14 months before eventually deciding not to proceed.
4. Mrs C’s care home failed to take her into the garden for two years, despite this being a requirement of her care plan.

17. The Council refused to consider Mr B’s complaints, saying the events he described were more than 12 months old.
18. Since then, Mr B has made a further complaint about a safeguarding investigation in December 2022.

My findings

19. The Council is entitled to apply the terms of its complaints policy when deciding how to respond to complaints. In Mr B’s case, it decided not to respond, because the complaint issues were more than 12 months old.
20. However, from the information I have seen, this was not entirely the case.
21. With regard to complaint A (above), large parts of the alleged delay period – and the ultimate decision itself – was within the 12-month period preceding Mr B’s complaint.
22. Furthermore, complaint B was about the assessment the Council completed seven months before Mr B’s complaints.
23. Because of this, the Council’s reason for refusing to respond to complaints A and B was not supported by the timeline (and evidence) Mr B has provided. I have found fault with the Council’s approach.
24. With regard to complaints C and D, I note that Mr B found out about these matters more than 12 months before complaining to the Council about them (in April and May 2022 respectively). Consequently, the Council’s decision not to respond to these complaints was not obviously unreasonable.
25. For the same reason, I will not investigate complaints C and D. I do acknowledge that Mr B:
• was trying to sort these issues out informally before making a complaint;
• was awaiting the outcome of the Council’s assessment; and
• has only become aware of the Council’s duties to Mrs C relatively recently.
26. However, I do not consider these to be good reasons why it would be unreasonable to expect him to have complained earlier. This means I cannot look at these complaints.

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Agreed action

27. Within four weeks, the Council has agreed to look again at Mr B’s July 2023 complaints (and his more recent safeguarding complaint) in line with the requirements of its complaints procedure, and decide how it will process the complaints.
28. The Council has agreed to provide us with evidence it has done this.

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Final decision

29. The Council was at fault for the way it refused to consider Mr B’s complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman