Summary: We will not investigate Mr D’s late complaint that the Council failed to consider his mitigating circumstances regarding the debt for his late mother’s Mrs C’s care charges. This is because Council’s actions have not caused a significant enough injustice to Mrs C’s estate and there is no good reason to disapply the law in this case.

The complaint

1. Mr D complained to the Council that it had not considered his mitigating circumstances when it decided to backdate an increase to his late mother’s, Mrs C’s contribution towards her care costs. Mr D says he explained to the Council he overlooked to tell them his mother had relinquished the tenancy on her property in November 2018. Mr D says he told the Council in May 2019 and says if the Council had changed Mrs C’s placement from temporary to permanent sooner it would have reworked the contribution sooner.

Back to top

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)

Back to top

How I considered this complaint

3. I considered the information and documentation Mr D and the Council provided. I sent Mr D a copy of my draft decision and considered his comments on it.

Back to top

What I found

4. Mrs C moved into temporary residential care in September 2018. The Council completed a financial assessment and took into consideration the costs she had to meet including liability for her rental property.
5. In November 2018 Mrs C gave up the tenancy on her property. Mrs C was assessed as needing a permanent placement in May 2019. Mrs C passed away in August 2020. Mr D advised the Council in May 2019 that Mrs C had given up her tenancy in November 2018. The Council reassessed Mrs C’s finances and backdated the contribution she would have paid from that date when she no longer had liability for her rental property. This increased Mrs C’s weekly contribution to £127.45. This was backdated to November 2018 when the liability ceased. The Council said Mrs C owed £3874.50 in arrears.
6. Mr D advised the Council of his concerns and asked they be considered as mitigating factors. The Council explained in its response to Mr D dated July 2019 there were no grounds to appeal the decision and the arrears remained payable.
7. Mr D complained the Council had not considered the mitigating circumstances about Mrs C’s financial assessment. The Council responded saying it had previously advised him there was no appeal against the decision.
8. While the Council has explained there is no appeal right in this case, it should have advised Mr D that forgetting to tell it of a change in circumstances is not a mitigating matter to be considered under its discretion to do so. However, even if it had done this, it is unlikely it would have come to a different conclusion that Mrs C or now her estate remains liable for the backdated contribution towards her care costs from November 2018 when she gave up the tenancy and was liable to pay the increased charges. The Council has agreed to discuss payment options with Mr D if he is unable, as executor of Mrs C’s estate, to pay the full amount.
9. Mr D says the error would have been found sooner if the Council had made Mrs C’s placement permanent before it did and completed a new financial assessment. Mr D could have complained sooner if he believed Mrs C’s placement should have been considered permanent sooner. The Ombudsman will not investigate this point now.

Back to top

Final decision

10. We will not investigate this complaint. This is because there is no good reason to exercise discretion and investigate this late complaint.

Back to top

Investigator's decision on behalf of the Ombudsman