Summary: I have exercised the Ombudsman’s discretion to discontinue investigating this complaint. The court is considering an action from the Competition and Markets Authority (CMA) about the legality of administration charges made by some care homes. I therefore consider it appropriate to wait for the court’s decision. If this does not provide a resolution for the complainant, they can come back to the Ombudsman.

The complaint

1. I refer to the person affected in this complaint as Ms D. Solicitors act in the capacity of power of attorney for Ms D’s property and finances. They complain that Shelbourne Senior Living Limited, the Care Provider, inappropriately charged Ms D an admission fee and failed to refer them to the Ombudsman. The solicitors say CMA guidance suggests that care providers should not be charging up front move in fees. The solicitors say the Care Provider should refund Ms D the £5000 move in fee she has paid.

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The Ombudsman’s role and powers

2. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

4. Ms D moved into Gracewell Care Home in March 2018. She paid an “admission fee” of £5000. In November 2018 the CMA issued guidance to care homes about the lawfulness of charging up front fees. The CMA has taken court action against several care providers about these charges.
5. The court will decide the lawfulness of up-front fees. The Ombudsman is bound by court decisions and it would be inappropriate to make a finding of fault where a court decision is imminent on the same matter.
6. The solicitors have the option of bringing Ms D’s complaint back to the Ombudsman if the outcome of the court case does not provide a suitable remedy.
7. The solicitors say the Care Provider failed to tell them about how to escalate the complaint to the Ombudsman. While this is fault, I am unable to say this has caused Ms D any injustice as her solicitors were aware of how to escalate her complaint. I am in any event unable to investigate this complaint in isolation. The Care Provider is however reminded to advise complainants about the Ombudsman when responding to complaints.
8. I have now discontinued my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman