Summary: We will not investigate Mr X’s complaint the Council refused to increase residential care homes fee for the year from April 2019. Mr X has a legal remedy in court on a contractual dispute. He complains late about the decision on fees in 2019.

The complaint

1. Mr X complains the Council refused to agree an increase of 5% in the fees his residential care home charges residents for the year from April 2019. Mr X says the Council also decided residents should pay less in top up fees. Mr X says the Council failed to give proper reasons for its decision which has caused his business to lose £16,450. The losses continue regarding four of the original residents who remain at the care home. Mr X says the Council has breached its contract with the care home. He says the Council should apologise and pay the fee increase requested plus interest at 8%. It should pay compensation of £2000 for two years of time and trouble.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
3. 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

4. I have considered Mr X’s comments and information. I sent him a draft version of this statement.

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What I found

5. The Council’s fee panel considered the case. On 16 June 2020, the Council’s ‘adjudicator’ agreed with the panel’s decision. The record of the review has information on each resident all of whom paid different amounts according to need. The review considered whether the resident was in the correct band, was eligible for ‘residential plus’, and whether there were exceptional circumstances. In each case, the decision was that an increase in the fee was not justified. The record says the Council followed the fee setting process for all providers. It refers to evidence fees paid to Mr X exceeded the cost of care.
6. Mr X’s complaint to the Council says it is in breach of contract. For example, clause 8 says a variation in normal rates will not affect 3rd party payments. Mr X says he has invoked the contract’s dispute procedure. The contract also provides for mediation.
7. Mr X complained to the Ombudsman on 9 April 2021.

Analysis

8. I will not investigate this complaint for the following reasons:
9. Mr X’s complaint the Council is in breach of contract regarding fees and/or top up fee arrangements is outside the jurisdiction of the Ombudsman. This is because he has a legal remedy at court on any matter covered by the contract (see paragraph 2 above).
10. I consider it reasonable for Mr X to use his legal remedy because a court has the power to decide contractual disputes and award compensation.
11. Mr X complains late and outside the permitted period of 12 months about the fee decision for the year April 2019 and about events in that financial year (see paragraph 3 above).
12. I will not exercise discretion to investigate the original decision and what Mr X says is a change in the Council’s custom and practice. Mr X could have complained sooner. Investigation is not likely to achieve the outcome Mr X seeks and as explained above contractual matters are for a court.

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Final decision

13. The Ombudsman will not investigate Mr X’s complaint the Council refused to increase residential care home fees for the year from April 2019. Mr X has a legal remedy at court on a contractual dispute. He complains late about the decision on fees in 2019.

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Investigator's decision on behalf of the Ombudsman