Summary: The Ombudsman will not investigate Ms A’s late complaint about the Council’s lack of communication with her about her brother-in law’s, Mr B’s care. This is because Ms A could have come to the Ombudsman sooner if she was concerned about the Council’s communication with her. Mr B died in 2017 so the Ombudsman cannot remedy any injustice to Mr B even if he investigated and found the fault Ms A alleges.

The complaint

1. Ms A says her brother-in-law, Mr B, did not receive the care he needed in 2016 when she informed the Council he required three calls a day. Ms A says this resulted in him having to move into a care home in 2017 where sadly he died. Ms A says Mr B did not want to go into a care home and said he wanted her to act in his best interests. Ms A says the Council did not respond to her request for documentation, so she was unable to apply to the Court of Protection for deputyship of Mr B’s finances in 2017. In addition, Ms A says the Council did not tell her of Mr B’s death in March 2017 and did not respond to her complaints following Mr B’s death.

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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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

4. I considered the information Ms A provided. I sent Ms A a copy of my draft decision, discussed her concerns with her and considered her additional information and documentation.

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What I found

5. Ms A is unhappy with the actions of the Council regarding Mr B’s care and the lack of communication with her about it in 2016 and 2017.
6. The law says complaints to the Ombudsman must be made-

• in writing, and
• before the end of the permitted period.

The “permitted period” means the period of 12 months beginning with-

• the day on which the person affected first had notice of the matter, or
• if the person affected has died without having notice of the matter—
• the day on which the personal representatives of the person affected first had notice of the matter, or
• if earlier, the day on which the complainant first had notice of the matter.

We may disapply either or both of the requirements in relation to a particular complaint. (Local Government Act 1974, section 26B)

7. Ms A says she did not come to the Ombudsman sooner because she has been pursuing getting information about whether Mr B had capacity at the time, initially complaining to the Ombudsman when the Council refused to give her the information she wanted and says the delay is because the Council did not respond to her complaint in 2017.
8. Ms A complained to the Ombudsman in 2019 about the Council’s refusal to provide her with access to information and was advised to contact the Information Commissioner’s Office (ICO). The ICO instructed the Council to provide her with the information she requested.
9. Ms A says she met with Mr B’s social worker in February 2017 and explained she was concerned about not being kept informed about his care needs as it was recorded in his best interest, she should be. She says the social worker advised her she would keep her informed, but she was not, and only found out Mr B had died through a friend. Ms A says she complained to the Council in March 2017 but did not receive a response.
10. Ms A knew of the concerns she raises now in 2016 and 2017 and did not need to wait until she had received the information she wanted regarding Mr B’s capacity to complain to the Ombudsman about them. Although Ms A says she has suffered injustice and has been put to a lot of time and trouble pursuing the Council for information about Mr B, the Ombudsman will not investigate this late complaint. Any injustice throughout this period was largely Mr B’s and, sadly, as he has died, there is now no suitable remedy to any fault an investigation might uncover. There is no good reason for the Ombudsman to disapply the law in this case.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because Ms A could have come to the Ombudsman sooner and there is no good reason to disapply the law in this case.

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Investigator's decision on behalf of the Ombudsman