Summary: We will not investigate Mr X’s complaint about the Council inappropriately applying its NHS standard contract when placing residents within his nursing home. This is because there is an alternative legal remedy available.

The complaint

1. Mr X is the chief executive officer of a care provider. He complains the Council has inappropriately applied its NHS standard contract when placing residents within his nursing home. He says this means they are forced to accept a lower fee for their services. He also complains about the Council’s handling of his complaint.

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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)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr X complains the Council is forcing the nursing home to accept lower fees for residents by incorrectly applying its NHS standard contract. Mr X considers the application of the contract is not appropriate and has given his reasons why.
6. Mr X says the Council’s approach is affecting its residentials and causing them to experience detriment and distress. However, Mr X does not have any consent to bring this complaint on the residents’ behalf. We would also consider it reasonable for residents to bring their own complaints should they be concerned the Council’s actions is causing them an injustice.
7. An investigation is not justified as there is an alternative legal remedy available to challenge the Council’s actions. This is because Mr X is essentially complaining about the terms of a legal commercial contract (the NHS standard contract) which is in force between the Council and the care provider.
8. The Ombudsman does not normally interpret the contract as commercial law is complex and arguments about its interpretations are for the courts. I am satisfied both parties can access the court process and that it is reasonable for Mr X to pursue the matter in court.
9. We will not investigate Mr X’s complaint about the Council’s handling of his complaint as we are not investigating the substantive matters which led to the complaint. It is not a proportionate use of our limited resources.

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Final decision

10. We will not investigate Mr X’s complaint because there is an alternative legal remedy available.

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Investigator's decision on behalf of the Ombudsman