Summary: We will not investigate Mr X’s complaint about the Council’s administration of a top-up fee agreement in 2018 for his mother Mrs X’s care home placement. There is not enough evidence of Council fault to warrant an investigation. The Council’s funding of Mrs X’s out-of-area placement does not cause significant personal injustice. The complaint is also late and there are no good reasons for us to investigate it now.

The complaint

1. Mrs X is Mr X’s elderly mother. Mrs X was discharged from hospital to a care home outside the Council’s area in 2018. Mr X entered into a third-party top-up arrangement to fund Mrs X’s placement at the family’s choice of care home.
2. Mr X complains the Council:
1. did not properly explain the details and implications of the top-up arrangement at the time;
2. failed to do proper assessments of Mrs X;
3. should not be administering the funding for Mrs X’s placement as she does not live in the Council’s area;
4. has delayed in dealing with the complaint.
3. Mr X says the way the care is being funded has caused alarm and distress. He says the Council’s delayed responses and decisions have had a financial impact on Mrs X. Mr X says he was not advised in a timely manner that he could withhold the top-up payment, delaying him doing this sooner. He wants the Council to:
• provide a financial settlement for the top-up payments;
• backdate funding for Mrs X’s care to the correct level;
• arrange future funding to allow Mrs X to stay in the same home without the top‑up payments;
• transfer the funding arrangements to the local authority where Mrs X’s care home is located.

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The Ombudsman’s role and powers

4. The Ombudsman investigates 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 or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

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)

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How I considered this complaint

6. I considered information provided by Mr X and the Council, and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X’s core complaint is that the Council did not properly explain to him the details and implications of the top-up fee he agreed to pay towards his mother’s care placement in 2018. He says he did not understand the implications of what he was signing. But the Council has provided a copy of the top-up agreement signed by Mr X which states how much the top-up sum would be. The form also advised Mr X to seek independent legal and financial advice before signing it. The Council assessed Mr X’s finances to determine whether the top-up sum was one he could afford, so his mother’s placement in the chosen home was sustainable.
8. Mr X also says the Council did not explain he could stop the top-up payments sooner. He says that had he known, he could have stopped making the payments and is seeking a financial settlement from the Council regarding this money. The top-up agreement Mr X signed in 2018 states at point iv. that:

‘If you wish to terminate the top-up agreement you will need to give the Council a minimum of eight weeks’ notice’.

This clause shows termination of the top-up by the agreement signatory is an option, so the Council made Mr X aware when he signed it that he could choose to end the top-up payment agreement. There is not enough evidence of fault by the Council in the way it provided Mr X with information about the top-up agreement or how it administered that process to warrant an investigation.

9. Mrs X’s placement is being funded by the Council but she lives outside its area, in another council’s jurisdiction close to Mr X’s home. Mr X says this is incorrect. The Council accepted the funding duty for Mrs X because she had been ordinarily resident in their area prior to her admission to care. This is in line with the requirements of the Care Act 2014 and it was not fault for the Council to do so. In any event, the source of funding for Mrs X placement does not cause significant injustice to her or Mr X which would justify investigating.
10. Mrs X went into her current care home in 2018. Mr X knew in 2018 about the amount of the top‑up payments because he complained about it to the Council in that year. The Council reply in November 2018 invited him to pursue the matter further and gave him the details for the Ombudsman. Mr X did not pursue the complaint with the Council and then to us. He complained again to the Council in 2021 instead and the Council provided its final response in early 2022.
11. We expect people to complain to us about something they believe a council has done wrong within 12 months of them becoming aware of it. Mr X knew about the top-up in 2018, and complained to us about it in July 2022, so the complaint is late. We will only investigate a late complaint if there is good reason to do so. Mr X started the Council complaint process about the top-up in 2018 so was able to complain. He could have continued with that complaint then brought the matter to us in time. There are no good reasons to investigate this late complaint now.
12. Mr X says the Council failed to do proper assessments of his mother and follow prescribed process when she was admitted to the care home. Mr X’s mother went into a care home in 2018 so this is a further aspect of his complaint to us which is late. As with the top-up fee matter, there is no good reason for us to investigate the Council’s 2018 assessments now as Mr X could have raised and pursued this issue in his complaint four years ago.
13. Mr X says the Council has delayed in dealing with the complaint. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this aspect of Mr X’s complaint.

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Final decision

14. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault by the Council in its administration of the top-up fee agreement in 2018 to warrant an investigation; and
• the Council’s ongoing funding of Mrs X’s out-of-area care home placement does not cause significant personal injustice; and
• the complaint is late and there are no good reasons for us to investigate it now; and
• we do not investigate complaints about council complaints process where we are not investigating the core issues which gave rise to the complaint.

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Investigator's decision on behalf of the Ombudsman