Summary: We will not investigate this complaint about a care home not receiving some funding. The complaint is late without good enough reason to investigate it now.

The complaint

1. Mr X runs a care home. He complains, via a representative, that the Council wrongly refused to give his care home any funding under the Council’s occupancy support scheme. Mr X’s representative says this worsened the care home’s financial problems.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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 information provided by the complainant’s representative and copy correspondence from the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The restriction in paragraph 2, in more detail, says that, unless the Ombudsman decides to disapply it, a complaint about a matter must be made to us within 12 months of ‘the day on which the person affected first had notice of the matter’.
6. Here, the substantive matter is the Council’s refusal to give Mr X’s business any occupancy support funding. The Council introduced the occupancy support scheme in April 2021 for the 2021/22 financial year (April 2021 to March 2022). Correspondence between Mr X, his Member of Parliament and the Council shows Mr X knew by May 2021 the Council had declined to give his care home any occupancy support funding and that Mr X considered that unfair. Therefore, the 12-month timescale referred to in paragraphs 2 and 5 started then. That is when Mr X first knew about the matter he complains of. The timescale did not begin later when Mr X or his representative researched government guidance (which, anyway, also seems to have been more than 12 months before the complaint to us), or when they later received a response they considered ‘final’ from the Council, or when the Council reportedly gave different refusal reasons in later explanations, or at any other point.
7. Mr X did not complain to us until August 2023, well over 12 months later. So the restriction in paragraph 2 applies.
8. Mr X’s representative stated they did not complain sooner because they believed the matter would be resolved and did not receive a ‘final’ response from the Council until March 2023. The legal restriction in paragraph 2 applies when someone first knows of a matter, not when they get a final response. Naturally, people might first spend some time in a complaint or similar procedure with the Council. However, people cannot reasonably pursue matters indefinitely with a Council before complaining to us. From mid-2021 onwards, the Council’s position remained that it would not pay Mr X occupancy support funding. The sporadic communications between the Council, Mr X, his MP and his representative do not amount to good enough reason to accept the complaint so late.
9. Also, even after the Council’s response in March 2023, Mr X took another five months to complain to us. His representative said that was due to seeking legal advice. However I am not persuaded that should reasonably have delayed a complaint to us by another five months, especially on a matter that was already nearly two years old and that Mr X thought significantly affected his business.
10. Mr X’s representative argued the Council changed its position between 2021 and 2023. He says the Council first argued Mr X was ineligible because his care home did not have a contract with the Council, then said that, while Mr X did in fact have a contract, it was not the relevant, 2020, contract. I am not persuaded this is enough reason to accept the late complaint now, because:
1. This point is about a detail – the particular refusal reason – whereas the central point that Mr X knew the Council had refused him any funding did not change between 2021 and 2023. While some detailed reasoning might have changed, that is not in itself good enough reason for taking so long to complain to us.
2. Anyway, the Council’s positions at first in 2021 and finally in March 2023 were not significantly different. The Council’s email to Mr X’s MP in June 2021 said, ‘…the Council made the considered decision to only offer this support to those that were part of the existing [that is, the 2020] Framework Agreement.’ The Council’s email to Mr X’s representative on 17 March 2023 said the occupancy support scheme was for ‘…those providers under the terms of the April 2020 contract…’
11. I appreciate the COVID-19 pandemic had a longer-term impact on care homes and Mr X would have been dealing with difficult circumstances. Nevertheless, it is reasonable to expect Mr X to have complained to us much sooner about a matter he says affected business. I am not persuaded there is enough reason to investigate the late complaint now.

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Final decision

12. We will not investigate Mr X’s complaint because it is late without good enough reason to investigate it now.

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Investigator's decision on behalf of the Ombudsman