Summary: We will not investigate this complaint about the Council refusing to recalculate Mr B’s late grandmother’s care fees. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an ombudsman investigation.

The complaint

1. Mr B complained about the Council’s refusal to properly calculate his late grandmother’s, Mrs C’s, care fees between 24 November and 7 December 2021. Mr B says the Council’s failure has penalised Mrs C’s estate causing unnecessary distress for him and his family. Mr B disputes the Council interpretation of the Care Act 2014 and its decision not to backdate care prior to him contacting it. Mr B says contrary to owing the Council money, fees were paid directly to the care home, so money is owed to Mrs C’s estate. Mr B says the Council failed to communicate effectively with him, did not leave messages so he was unable to call back to discuss his complaints.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. The Council must assess the care and support needs of a person it is aware of who might need care and support. At the point Mrs C or her family arranged her care privately they had not asked the Council to do that. Although the Care Act 2014 and statutory guidance does not say the Council cannot backdate payment, nor does it say it must. The Council is only required to meet the needs of someone to whom it has a duty after assessing their needs. In this case, there was no assessment prior to 24 November 2021 because it was not requested, and therefore no duty to meet need or pay for the care. If Mr B wants to challenge the Council's position on this point he will have to do so through the courts as a matter of legal interpretation.
7. Mr B says Mrs C paid the care home privately between 24 November and 7 December 2021 when she died, so contrary to her owing the Council money, her estate is due a refund. The Council paid Mrs C’s care fees during this period so there is no evidence of fault with the actions taken by the Council. The Council has provided a statement of what the outstanding balance comprises of and informed Mrs C’s representatives about the outstanding debts at the date she died. It is the responsibility of the executor to collect the assets, pay any debts and use the resulting balance to distribute to any beneficiaries. If Mrs C’s executors are disputing the existence of a particular debt they can refuse to pay and defend any court proceedings against them.
8. Mr B also complained about poor communication between him and Council and its failure to contact him when he complained. Where we are not considering the substantive matter we will not normally consider how a council has responded to a complaint. That is the case here.

Back to top

Final decision

9. We will not investigate Mr B’s complaint because there is not enough evidence of fault with the actions taken by the Council to warrant an ombudsman investigation.

Back to top

Investigator's decision on behalf of the Ombudsman