Summary: We will not investigate this complaint about funding residential care. The complaint starts from events in 2014, before the current law came into effect. Relevant people central to the complaint have died. It will now be difficult to prove the material facts about these historical allegations with reasonable confidence. The Information Commissioner’s Office is better placed to consider concerns about the release of personal information.

The complaint

1. Mr D recently found out that his relative, Ms E, should not have cashed in income bonds to fund her residential care. Mr D says had she not done so the local council would have been responsible to arrange and contribute funding for her care. Mr D says the Council will not investigate and will not disclose records relating to Ms E’s care support.

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The Ombudsman’s role and powers

2. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

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

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My assessment

5. Mr D’s complaint covers events from 2014 to 2024. Between 2014 and 2019 Ms E self-funded her care in residential homes in Devon’s area, before moving to another council area (council 2).
6. While living in Devon, another relative, Mr X, was arranging Ms E’s care and managing her finances. Mr D and Mr X both had power of attorney to manage Ms E’s finances. Mr X died in 2020. Mr D continued to cash in income bonds and pay privately for Ms E’s care. Until he found out in late 2023 they did not need to cash in income bonds, and he approached council 2 for help with financing Ms E’s care. Unfortunately, Ms E died before council 2 completed its assessment. Council 2 then said Ms E was not ordinarily resident in its area and to approach Devon. The Secretary of State is responsible to resolve disputes about ordinary residence. This dispute about ordinary residence was not resolved because Ms E died so no longer needed support with funding her care.
7. Historical allegations are where so much time has elapsed since the fault complained of occurred that an investigation is likely to be impeded by the passage of time. It will now be difficult to prove the material facts with reasonable confidence. The material facts in this case are whether the Council told Mr X to cash in income bonds to pay for Ms E’s care or whether this was a decision he took and had never approached the Council for funding support. Mr X has died so we cannot ask him why he chose to cash in income bonds. The other barrier to reaching a safe conclusion is the law on funding residential care was different in 2014 to what is in force now. The Care Act 2014 came into effect on 1 April 2015. We cannot apply the current standards to a historical situation. Even if the Council gave advice to cash in income bonds, that advice might have been correct at the time it was given.
8. While it is upsetting for Mr D to learn Ms E has spent money on care she may not have needed to, that is not necessarily caused by any fault of the Council. The Ombudsman could not say the Council must backdate funding for Ms E for a time before it was ever approached to assess her. The dispute about ordinary residence also complicates matters.
9. I am not satisfied that there is a realistic prospect of reaching a sound, fair, and meaningful decision.
10. The Council declined to investigate the complaint for the same reason. We would not criticise that decision.
11. Mr D says the Council refused to disclose Ms E’s records to him. The Information Commissioner’s Office would be better placed to consider that complaint.

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Final decision

12. We will not investigate Mr D’s complaint because I am not satisfied that there is a realistic prospect of reaching a sound, fair, and meaningful decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman