Summary: We will not investigate this complaint about the Council’s decision to charge Mr X for his care. There is insufficient evidence of fault by the Council.

The complaint

1. Miss X complained the Council told her there was no evidence her father (Mr Y) was detained under the Mental Health Act in the 1990s and he therefore had to pay for his care. Miss X said the matter caused Mr Y distress and worsened his mental health. She said it caused her significant distress too, which worsened her health conditions. Miss X wanted evidence of Mr Y’s admission to be located, to clarify how his care should be funded.

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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 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider the complaint.

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

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS services. (Local Government Act 1974, sections 25 and 34(1), as amended)

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How I considered this complaint

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

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My assessment

6. When a person has been detained under the Mental Health Act, they may subsequently qualify for Section 117 aftercare, which means they do not have to pay the costs of their own care. Miss X says Mr Y was detained under section 3 of the Mental Health Act for six months in the 1990s.
7. Miss X says the Council has invoiced her father for his care because it says there is no record of him having been detained under the Mental Health Act. Miss X has made information requests to several NHS bodies, and she has spent considerable time personally reviewing Mr Y’s medical records to try and locate information about his detention.
8. The Council checked information stored on three recording systems available to it, including two NHS systems. The Council could not locate information to suggest Mr Y had been detained under the Mental Health Act. It told Miss X it could review its decision Mr Y’s care was chargeable, should she locate evidence Mr Y was detained under the Mental Health Act.
9. There is insufficient evidence of fault by the Council to justify an investigation by us. The records about any detention under the Mental Health Act are NHS records, not those of the Council. We cannot investigate the NHS bodies whose responsibility it was to keep records of Mr Y’s hospitalisation. We could not achieve anything meaningful by investigating this complaint, as we have no power to locate NHS records. Without evidence Mr Y was detained under section 3 of the Mental Health Act, the Council is entitled to charge for his care.
10. It is open to Miss X to pursue a complaint against the NHS in relation to inadequate record-keeping, should there be no record of Mr Y’s detention. It is open to her to escalate the matter to the Parliamentary and Health Service Ombudsman if necessary, and the Information Commissioner’s Office as the body that deals with complaints about how organisations handle people’s data.

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Final decision

11. We will not investigate Miss X’s complaint because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman