Summary: We ended the investigation because it is reasonable for Mr X to go to court about money he believes Mrs Y should not have paid to the Council.

The complaint

1. Mr X complained for Mrs Y about Kirklees Metropolitan Borough Council (the Council). He said it reneged on an agreement in 2021 to refund top-up fees paid for Mrs Y care home fees.
2. Mr X said this caused a financial loss to Mrs Y and legal costs of just under £300,000. He wants the Council to reimburse this.

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The Ombudsman’s role and powers

3. We have the power to start or not to continue with an investigation. (Local Government Act 1974, section 24A(6))
4. 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)
5. Restitution is a remedy based on the legal principle of unjust enrichment (a person or organisation is unjustly enriched if they have benefitted at someone else's expense due to a mistake). To bring a legal claim in restitution, the defendant must have been unjustly enriched at the claimant’s expense. If successful, the outcome is to restore the person bringing the claim back to their rightful position.
6. A legal claim in negligence is possible if a person has received professional advice which falls below the standard of care reasonably expected of the professional.

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How I considered this complaint

7. I considered Mr X’s complaint to us and correspondence between the parties, including the complaint to the Council and its responses.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. Mrs Y has been living in a care home for many years. Mr X manages her finances as her attorney. Mr X has retained the advice of a solicitor since 2011 to date. Mrs Y’s care is funded by the Council and NHS through joint responsibilities under section 117 of the Mental Health Act 1983. Normally, councils do not charge people for care they receive under section117. For many years, Mrs Y did pay a charge towards her fees, which I refer to as a top-up. I understand the arrangement for the top-up was between the care home and Mr X and the Council was not involved in it.
10. Mr X’s solicitor wrote to the Council about the top-up in 2020 saying Mrs Y should not have been paying it because (1) she was getting section 117 funding and (2) the contract for her care did not specify a top-up. The Council initially agreed a refund then went back on this saying the officer who agreed it did not have all the relevant information. Mr X’s and the Council’s lawyers exchanged correspondence and then Mr X used the Council’s complaints procedure, which did not resolve the issue.
11. Since complaining to us, the Council and Mr X have been trying to resolve the dispute through negotiation and through pre-action legal correspondence. Mr X’s lawyers have put forward a proposal for an informal settlement which covers the matters Mr X has complained to us about. The Council told me it was considering the proposal at the time of writing this statement.

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Final decision

12. I ended (discontinued) my investigation because there are two alternative legal claims available to Mr X on behalf of Mrs Y in respect of the complaint:
• Restitution (against the Council) and
• Professional negligence against the lawyers acting for Mr X and Mrs Y for failing to identify sooner that Mrs Y should not have been paying a top-up for years.
13. Neither remedy has been used, but a claim in restitution is being contemplated and Mr X’s solicitor has sent a pre-action letter indicating an intention to bring a claim. I consider it reasonable for Mr X, acting on Mrs Y’s behalf to use either of the legal remedies in the previous paragraph. I have taken into account:
• Lawyers acting for the parties have been negotiating informally and have exchanged pre-action letters formulating the claim and the defence. This indicates a legal remedy is available
• Funding for the restitution claim would be possible on a no win no fee basis. So would funding for a professional negligence claim (although Mr X would have to instruct a different firm of solicitors). Alternatively, correspondence indicates Mrs Y has income and savings which would be available for legal fees if necessary.

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Investigator's decision on behalf of the Ombudsman