Summary: We will not investigate Mr X’s complaint about the contract the Council agreed with the care home where his brother lived. There is insufficient evidence of fault and insufficient injustice caused to justify our involvement.

The complaint

1. Mr X complained about the contract the Council agreed with the care home where his brother, Mr Y, lived. He says those paying privately had a contract, which allowed a 25% reduction in the fees when a resident was away from the home, for example, because they were in hospital. He says the Council should have ensured the same term was included in its contract with the care home.
2. Mr X was paying a top-up fee because the care home fees were more than the personal budget the Council set for Mr Y. Mr X had to continue to pay the full amount of the top-up fees, even when Mr Y had a six week stay in hospital, which he considers was unfair as those paying privately would have had a discount.

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The Ombudsman’s role and powers

3. 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 injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

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

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My assessment

What happened

6. Mr Y moved to a care home in February 2022 and Mr X agreed to pay a top up fee because the care home cost more than the personal budget the Council had set for Mr Y’s care costs.
7. Mr Y was admitted to hospital in October 2023 for six weeks. At this point, Mr X became aware that residents paying privately got a 25% discount on the care home fees when they were away from the home. He asked the Council to reduce the amount of the top-ups he was paying to reflect this, but the Council said that particular term was not included in the Council's contract with the care home.
8. In its complaint response, the Council explained it used the same contract for all the care homes it had contracts with. It would not be aware of the terms of contracts for those residents paying privately when agreeing its contract but, if it had been, it may have been able to negotiate to include the term allowing a discount. However, it pointed out that there may have been other terms in the private contract that it would not have agreed to.

My assessment

9. Mr X complained about the contract the Council agreed with the care home when Mr Y went to live there in February 2022. We would not usually investigate complaints about events more than 12 months before the complaint to us. However, I note that Mr X only became aware of the issue with the contract when Mr Y had a hospital stay in October/November 2023. He has therefore complained to us within 12 months of having notice of the matter, so the complaint is made in time.
10. The Council uses a standard contract with care homes and there is no evidence it was aware of the specific term in private contracts when it agreed its contract with this particular care home. Even if it had been aware, we cannot say now, even on balance, that the care home would have agreed to include that specific term in the contract. Therefore, the injustice to Mr X, even if we found fault in the way the Council agreed the contract, is limited to his uncertainty about whether the outcome would have been different.
11. There is no indication that Mr X was not given appropriate information about the agreement with the care home and the amount he needed to pay as a top-up. Further, there is no indication the Council misled him about the position when a resident was away from the care home.
12. Although Mr X understandably feels it was unfair the discount did not apply, there is insufficient evidence of fault by the Council and insufficient injustice caused to justify further investigation. It is also unlikely we could achieve a worthwhile outcome by doing so.

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Final decision

13. We will not investigate Mr X’s complaint because there is insufficient evidence of fault and insufficient injustice to justify our involvement.

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Investigator's decision on behalf of the Ombudsman