Summary: We will not investigate this complaint about quality of care and an incident in 2021, and the Council’s delay until 2023 in pursuing payment for outstanding care fees. There is not a good reason for the delay in the events of 2021 being brought to the Ombudsman. Investigation by us into later events would not achieve the outcome Ms X seeks.

The complaint

1. Ms X complained about:
1. the quality of domiciliary care provided to her father (Mr Y);
2. an incident she says led to Mr Y’s untimely and undignified death; and
3. the Council's failure to discuss Mr Y’s charges with her, causing debt to build.
2. Ms X wants an apology and for Mr Y’s charges to be waived.

Back to top

The Ombudsman’s role and powers

3. 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

Matters that are late

7. The law says people must bring complaints to us within 12 months of finding out about the matter, unless there are good reasons.
8. The incident Ms X says led to Mr Y’s death happened in mid-2021 and she discussed her concerns with the Council at the time. Ms X was also aware in 2021 of any general quality of care concerns, and became aware in 2021 of the sum of arrears Mr Y had built due to not having paid his contributions. These matters are therefore late, and I have considered whether there is a good justification to exercise our discretion to investigate them.
9. Ms X says the Council was not willing to consider a complaint in 2021. There is no evidence of her having made a formal complaint in 2021. However, had Ms X done so, and not received a final response within 12 weeks, she could have contacted us or asked someone else to contact us on her behalf if necessary.
10. Ms X raised the above complaints with the Council in July 2023, after having received contact from it about outstanding care charges. The Council signposted Ms X to the Ombudsman in November 2023, however it took a further seven months for the complaint to be brought to us, while Ms X sought assistance from an advice agency.
11. Ms X has provided several reasons for the delay which I have taken into account. Her reasons include her neurodivergent condition, her caring role for another family member and poor mental health. I have also considered that Ms X was grieving her father’s death. The factors she included in her communications with us explain some of the delay, however they do not explain the entire three years it took to bring the matter to the Ombudsman and there is not sufficient justification for us to exercise discretion to disapply the time limit.

Matters that are in time

12. The Council’s decision to pursue outstanding arrears in mid-2023 is not late, so I have considered that matter separately to decide whether we can and should investigate it. Any dispute as to the amount Mr Y owed for his care would be a matter that could have been raised in 2021. Therefore, I have worked on the assumption the fees are rightly owed.
13. There is insufficient evidence of fault in the Council deciding to pursue Ms X for the arrears. It was entitled to do so given that they remained unpaid. However, the delay in the Council doing so would likely be considered fault if we investigated this complaint.
14. Any fault in this respect did not cause injustice. Ms X was aware in 2021 of the amount the Council considered outstanding, so she could reasonably have expected it would pursue those arrears at some point. It is not the Ombudsman’s role to make recommendations that benefit complainants, and where charges are rightly owed we would not recommend they are waived.
15. When we consider what injustice a person has experienced, we must consider what would have happened but for any fault. The delay has not caused a quantifiable financial injustice that would justify fees being waived. Had the Council not delayed, the charges would have been owed in any event, just at an earlier date. We cannot achieve a meaningful outcome by investigating the matter further.
16. Even if we exercised discretion to consider late matters, we would not recommend a waiver of care charges in relation to quality of care issues and the incident for the same reasons as detailed above. These matters did not cause a quantifiable financial injustice. It follows that any remedy we would therefore have recommended in relation to those matters, if appropriate, would instead have been a modest, symbolic payment in recognition of things such as distress. We cannot achieve the outcome Ms X seeks.

Back to top

Final decision

17. We will not investigate Ms X’s late complaint because there is not a good reason for the delay in her bringing matters from 2021 to the Ombudsman. Investigation by us into later events would not achieve the outcome Ms X seeks.

Back to top

Investigator's decision on behalf of the Ombudsman