Summary: Ms X complained the Council has not paid her care company for overnight support it has provided to a person with eligible care needs. We cannot investigate this late complaint. It relates to a commissioning or contractual issue, and would best be dealt with by the courts if a resolution cannot be reached.

The complaint

1. Ms X complained the Council has not paid for the support her care company has provided to a person who receives care in its supported living accommodation. Ms X says the company has provided a waking night carer since 2013. It seeks reimbursement of this at a cost of £133,564, and agreement from the Council to pay it for night support going forward.

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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 considered the information Ms X provided when she complained.
5. I considered information the Council provided, which included copies of its correspondence with Ms X.
6. I gave Ms X the opportunity to comment on a draft version of this decision.

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What I found

7. Ms X’s care company began providing care for the person with care needs, who I will call Mrs Y, in 2013. Mrs Y’s accommodation at that time had a night time carer who would be asleep (a sleepover carer), but the care company soon found Mrs Y needed a carer who was awake at night (a waking night carer). Mrs Y would otherwise be at risk. The company raised its concern with the Council.
8. The Council reassessed Mrs Y’s needs and agreed she needed waking night support. The care company was in the process of opening a new accommodation and all parties agreed a move to the new accommodation was suitable for Mrs Y, and that Mrs Y would pay the additional cost of having a waking night carer.
9. It is not clear what was agreed at this time, and whether any contract was created and signed making clear what the payment arrangements would be. Mrs Y moved into the new accommodation, and the care provider began this support, without clarity about whether the Council agreed to the funding and how that would be managed if so. Ms X says she has since discussed this with the Council several times and no resolution has been reached over the course of six years.
10. Ms X says the amount the company is due is £133,564. She believes the Council is liable to pay this as she says the social worker did not put in the application for funding as they should have. This is a significant sum of money and relates to the Council’s commissioning decision. A claim for such a figure would be for the high court, if Ms X believes there may have been a breach of contract. However, broadly, contractual claims must be made within six years from when a contract was breached. Ms X should seek legal advice to consider whether she can, and should, apply to the courts.
11. Where a court remedy is not reasonable for a person to use (for example when the time limits to apply to court have elapsed), we may consider exercising discretion to investigate the complaint. I have considered whether we should use our discretion to investigate this complaint in the event that it is too late for Ms X to seek compensation through the courts.
12. However, Ms X’s complaint to us is also late. We cannot consider late complaints unless there are good reasons. I have considered that Ms X found out additional information within the 12 months before she complained to us which may have led to her deciding to complain to us. However, Mrs Y moved into the accommodation in 2013 and the company has not received any payment for night support since then. Ms X could have complained much sooner, and the likelihood of us being able to investigate what happened is significantly reduced by the time that has elapsed since then. We should not consider this complaint.

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Final decision

13. The Ombudsman cannot investigate this complaint. This is because there is a legal remedy available to Ms X through the high court and it is not suitable, in the circumstances, for us to use discretion to consider this late complaint.

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Investigator's decision on behalf of the Ombudsman