Summary: We will not investigate this complaint about an alleged failure by the Council to pay the complainant’s invoices for care services. The issue concerns a contractual legal dispute and the complainant could reasonably take court action. Further, we will not investigate alleged fault around the Council’s safeguarding and procurement processes due to time and insufficient evidence of fault.

The complaint

1. The complainant (Mrs H) is complaining on behalf of her organisation (the Care Provider) which provides care and support services. The Council had a contract with the Care Provider and referred individuals in its area to its services. Since 2021, Mrs H alleges a failure by the Council to pay a fee increase for the Care Provider’s services and make provision for this in the contract. In the same time period, Mrs H also says the Council delayed paying the Care Provider’s invoices which resulted in a legal dispute.
2. Since these problems, Mrs H says the Council has unfairly stopped making care referrals to its services and will not allow the Care Provider to partake in a public tender for a new contract. Further, she alleges the Council unjustly retaliated to the dispute by taking safeguarding action against the Care Provider by questioning its ability to appropriately meet the needs of its service users.
3. In summary, Mrs H says the unexplained payment stoppages by the Council has led to financial instability with Care Provider, as well as uncertainty, stress and anxiety for those involved. As a desired outcome, she wants the Council to acknowledge its failings and be held accountable.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the per-son making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is not enough evidence of fault to justify this. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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).
6. 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

7. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. The complaint about fees and invoice payments concern the Care Provider’s care services given between 2021 and 2022. The Council explained back in late 2022 that it would stop referring service users because the contract governing the arrangement with the Care Provider had expired in 2015. The Council said it was required by law to put future contracts to a public tender for competition and good governance purposes. In my view, the issues about fees and payment concern a legal dispute and whether the Council has breached its contractual obligations.
9. In my view, the courts are the most appropriate body to make a legal decision about obligations under the contract and whether the Care Provider is entitled to any remedy. I note Mrs H refers to the Care Provider initiating legal action previously about these problems. This suggests to me the Care Provider could reasonably take court action over the dispute. We cannot investigate these matters as the restriction I outline a paragraph five (above) therefore applies.
10. This year, the Council has put a future contract opportunity to public tender in accordance with its public sector duty. Mrs H says the Council has excluded the Care Provider from the tender process. We can normally look at the Council’s procurement of services and how it has considered bids. Mrs H says the Care Provider has bid on a recent contract tendered by the Council and yet it has not heard anything in response. The evidence shows the contract had not yet been awarded at the time of Mrs H complaint. The Council told Mrs H the Care Provider would receive the outcome of the tender at the same time as other bidders. The tender process had not concluded and so we are unlikely to find evidence of fault.
11. Separately, Mrs H alleges fault by the Council for “weaponising” its safeguarding processes in retaliation to the dispute. The evidence shows the Council’s safeguarding concerns and actions were in response to information the Care Provider sent its service users in early 2022. By law, we cannot investigate a complaint made more than twelve months of the complainant becoming aware of the problem. The Care Provider knew about the safeguarding concerns when these were first raised and so the complaint is late. This problem could and should have formed the basis of a complaint sooner and I see no good reason to exercise discretion and investigate now.

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Final decision

12. We will not investigate this complaint as most of the issues are outside of our legal jurisdiction. We are unlikely to find evidence of fault in relation to the remaining complaint area about the Council’s contract tender.

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Investigator's decision on behalf of the Ombudsman