Summary: The Ombudsman will not investigate Mr A’s late complaint about the Council charging his late mother’s, Mrs B’s, estate for her care. This is because Mr A could have come to the Ombudsman sooner if her was concerned about the charges so there no good reason for the Ombudsman to disapply the law in this case.

The complaint

1. Mr A says the Council should have assessed his late mother, Mrs B, for Continuing Health Care funding before charging her for care. Mr A says Mrs B wanted to live with him but the Council refused to allow this and she died in the care home in 2013. Mr A says Mrs B should have been entitled to s117 aftercare.

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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)

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How I considered this complaint

3. I considered the information and documentation Mr A and the Council provided. I sent Mr A a copy of my draft decision for comment.

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What I found

4. Mr A says Mrs B moved to a residential care home in 2012 following discharge from hospital. Mr A says Mrs B wanted to live with him, but the Council said she lacked capacity to decide for herself where she should live. The Council determined it would be in Mrs B’s best interests she remain living in the care home. Sadly, Mrs B died in 2013. The Council invoiced Mr A the total amount of care costs which was £24721.55 plus interest of £11785.08.
5. Mr A says Mrs B should have been assessed for NHS Continuing Health Care (CHC) funding and should have been entitled to s117 aftercare. The Council says Mrs B’s social care assessment did not indicate that she needed nursing care.
6. 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 2012 and 2013, there is no fault with the Council for charging for care it provided during this period. The Council has advised Mr A it is not requesting he pays for Mrs B’s care but the fees should be payable from Mrs B’s estate.
7. It is the CCG’s decision whether to award CHC funding, so Mr A can apply for a retrospective assessment. Mr A as the applicant can tell the CCG why he disputes the Council’s view and say what nursing care Mrs B received. But it is up to CCG to get all information it needs to decide an application. 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

8. Mr A says Mrs B should have been entitled to s117 aftercare. I have not seen any evidence that Mrs B was detained under section 3 of the Mental Health Act warranting s117 aftercare.
9. The law says complaints to the Ombudsman must be made-

• in writing, and
• before the end of the permitted period.

The permitted period means the period of 12 months beginning

With-

• the day on which the person affected first had notice of the matter, or
• if the person affected has died without having notice of the matter—
• the day on which the personal representatives of the person affected first had notice of the matter, or
• if earlier, the day on which the complainant first had notice of the matter.

(3) A Local Commissioner may disapply either or both of the requirements in in relation to a particular complaint.

10. Mr A was initially invoiced for Mrs B’s care in 2013. He could have complained to the Council and the Ombudsman sooner if he was concerned about the charges. There is no good reason for the Ombudsman to apply his discretion and investigate this late complaint now.

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Final decision

11. The Ombudsman will not investigate this late complaint. This is because Mr A could have come to the Ombudsman sooner if he was concerned about the charges so there no good reason for the Ombudsman to disapply the law in this case.

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Investigator's decision on behalf of the Ombudsman