Summary: Mr Y complained that the Council incorrectly charged him a third party top up fee towards his mother’s care. We will not investigate his complaint because it is late, and there are no good reasons to disregard our statutory time limit.

The complaint

1. Mr Y complains that the Council charged him ‘third party top up’ fees towards his mother’s (Mrs X’s) residential care. But, he says, it should not have done this, because there was no choice about which care home she went into, and no alternatives were offered which would not have needed the top-up.

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The Ombudsman’s role and powers

2. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

3. I considered evidence provided by Mr Y’s solicitor and the Council as well as relevant law, policy and guidance.
4. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What happened

5. Mrs X moved into a care home for a short period of respite care in early September 2022. At the time, the care home was the only one available. Nonetheless, the Council asked Mr Y to agree a ‘third party top up’ towards the cost of the care. He agreed to pay around £80 a week.
6. Three weeks later, Mrs X returned home. But her family told the Council they were struggling to meet her needs. They asked that she return to residential care.
7. Mrs X went back into the same care home (this time on a permanent basis). The Council says her family agreed to this and were happy with the home. It also says Mr Y agreed to continue paying the top up.
8. Mr Y says the care home was the only choice available to Mrs X, and the Council did not let him know about any cheaper options (which would not have required the top up).
9. Mr Y began receiving invoices for the top up in February 2023 and continued to receive them regularly after that point.
10. In June 2024, Mr Y’s solicitor complained to the Council on his behalf, saying:
• When Mrs X returned to the care home in late September 2022, the Council did not offer any other placement options. Mr Y looked into other local care homes, but there was no availability.
• Statutory guidance says there should have been at least one option for Mrs X which did not need a top up. Top ups must always be optional, not because of commissioning failures leading to a lack of choice.
• Consequently, the top up arrangement was ‘unlawful’.
11. Mr Y’s solicitor says Mr Y did not approach the Council for such a long time because he did not know he was able to challenge the top up agreement.
12. In August, the Council responded. It acknowledged that it should not have charged Mr Y a top up for Mrs X’s respite care because the care home was the only option available. It said it would refund him for the three-week respite period.
13. However, the Council said the care home was the family’s choice when Mrs X went back into permanent residential care, and the top up fees were explained (and agreed) at the time.
14. Mr Y’s solicitor complained to the Council again, saying:
• Mrs X’s second care home admission was so close to the first one that, given there were no other options the first time, it is reasonable to suggest that there weren’t the second time either.
• The Council continued to fail to demonstrate that there were other options for Mrs X which did not need a top up from Mr Y.
15. The Council responded in October. It did not change its position. It said no concerns had been raised about the care home and it had not heard that Mrs X wanted to move. It provided a list of care homes in the area which would be cheaper (and would not need a top up from Mr Y).
16. Mr Y’s solicitor approached us in January 2025, saying:
• There was no evidence that the Council provided the list of alternative options to Mrs X’s family before its final complaint response.
• The family do not want to move Mrs X to a cheaper care home because this would not be in her best interests.

My findings

17. Although the top up agreement continues to affect Mr Y, the relevant decision (and the alleged maladministration) happened in September 2022. Mr Y became aware of the top up, at the very latest, by February 2023.
18. This means his complaint is late, by the definition in the Local Government Act.
19. We cannot normally investigate late complaints. However, we may exercise our discretion to do so if there are good reasons. ‘Good reasons’ may include that it would have been unreasonable – for whatever reason – to expect someone to complain to us sooner.
20. I have considered exercising our discretion in Mr Y’s case. However, I note that:
• Mr Y was aware that the Council expected him to pay a top up for at least two years before complaining to us (and possibly longer).
• After he started receiving the Council’s invoices, there was a period of around sixteen months in which he did not challenge them using the Council’s complaints procedure.
• Although his solicitor says he did not know he could challenge the top up agreement, the facility to complain to a council about something is widely known or, at the very least, easily discovered using an internet search.
• There was no significant delay to the Council’s handling of his solicitor’s complaint.
• There is no other good reason why it would have been unreasonable to expect Mr Y to bring his complaint to us sooner.
21. Consequently, I have decided it would not be appropriate to exercise discretion, and I will not investigate Mr Y’s complaint.

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Decision

22. I will not investigate this complaint because it is late, and there are no good reasons to disregard our statutory time limit.

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Investigator's decision on behalf of the Ombudsman