Summary: We will not investigate Mr X’s late complaint about the Council refusing to enter into a third party top-up agreement relating to his brother-in-law’s care. There is not a good reason Mr X did not bring his complaint to the Ombudsman sooner.

The complaint

1. Mr X complained the Council refused to enter into a third party top-up agreement with him and his wife in May 2019, in relation to his brother in law (Mr Y). The Council said it was unlawful to do so, despite this conflicting with its policy. The Council then did not provide a satisfactory explanation and refused to consider their complaint because the courts had considered the matter. This caused significant stress and nearly prevented Mr Y being able to move accommodation.

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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 Mr X provided when he complained to us.
4. I considered Mr X’s comments on my draft decision.

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What I found

5. In May 2019 the Council said it could not enter into a third party top-up agreement with Mr X and his wife in relation to his brother-in-law’s (Mr Y’s) care. Third party top-ups are paid when a particular preferred placement costs more than the amount a Council is prepared to pay towards a person’s care.
6. The Court of Protection was involved in the decision about whether Mr Y should move from a care home to a nursing home, closer to Mr X and his wife. The court process concluded in June 2019. Mr Y did not move to the nursing home Mr X says he and his wife preferred and were willing and able to pay a top-up for.
7. Mr X made two information requests to the Council, and received its second response in December 2019. This confirmed the Council’s policy allowed it to enter into third party top-up agreements with family members.
8. In June 2020, Mr X asked the Council to explain why it had said during court proceedings it could not enter into a top-up agreement.
9. In October 2020, Mr X made a formal complaint to the Council. It responded to say it could not consider the matter through its complaints procedure because the matter had been considered during court proceedings. Mr X complained to us in November 2020.
10. The law says we cannot investigate complaints brought to us after more than 12 months unless there are good reasons for the delay. Mr X says the 12 months should begin in December 2019 when he considers he had the information he needed to complain. But the decision Mr X complains about is the Council’s assertion in May 2019 that it could not enter into a third party top-up agreement.
11. I have accounted for Mr X and his wife’s poor health in early 2020, as well as the death of Mr Y in February 2020, which accounts for some delay between December 2019 and June 2020. However, these events followed an already significant period during which Mr X could have complained to the Council and then us. We do not require people to have gathered significant evidence before they can bring complaints to us. Mr X knew of the Council’s decision, which he and his wife did not agree with, in May 2019. There is not sufficiently good reason Mr X did not complain to the Council, and then the Ombudsman, much sooner. There is not a good reason for us to exercise discretion to investigate this complaint.

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Final decision

12. The Ombudsman will not investigate this late complaint. This is because there is not a good reason Mr X did not complain to us sooner.

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Investigator's decision on behalf of the Ombudsman