Summary: We will not investigate this late complaint about a care provider’s actions, including alleged poor record-keeping and communication. There is not a good reason for the delay in the matter being brought to the Ombudsman.

The complaint

1. Mrs X complained the Care Provider, commissioned by the Council:
• failed to act in line with her mother’s (Mrs Y’s) end of life wishes and acted obstructively;
• failed to communicate effectively with the family and other involved professionals;
• did not keep proper records, for example failing to have the necessary care plans and risk assessments in place; and
• did not respond properly to her complaint.
2. Mrs X said the matter caused distress, family arguments and inconvenience. She wanted acknowledgement of fault, answers and apologies. She also wanted a full refund of Mrs Y’s care fees, due to a breach of contract.

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The Ombudsman’s role and powers

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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (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)

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The law says people must complain to us within 12 months of becoming aware of the matter. However, we have discretion to investigate late complaints where there is good reason for the delay in the matter being brought to us.
9. Mrs Y died in November 2022. Mrs X’s complaint is about events that occurred before Mrs Y’s death. At the time of Mrs Y’s death, Mrs X already had sufficient concern to be complaining, as she complained to the Care Provider in late 2022 and early 2023. The Care Provider issued her a final complaint response, signposting to us, in August 2023. When considering the timescales involved in the matter being brought to us, I have taken into account that the Care Provider took six months to issue this complaint response. However, the delay was not solely due to the Care Provider’s complaint-handling.
10. Following the Care Provider’s final response, Mrs X requested records and analysed their contents before complaining to us. She complained to us in March 2024, seven months after the Care Provider issued her its final response. We do not require people to go on a fact-finding mission before they bring complaints to us, and doing so usually leads to unreasonable delay. The longer that passes between events and the matter being brought to our attention, the less likely it is we could carry out a fair investigation.
11. Mrs X says having sight of the records led to her having additional concerns that she was not aware of at an earlier date. However, the information she identified within the records was evidence in support of matters she had already raised. I am satisfied Mrs X could have brought her substantive complaint to us in August 2023. It would then have been for us to obtain the information we would need to investigate the matter. There is not a good reason for us to investigate this late complaint.
12. In any event, we could not achieve the outcome Mrs X seeks from complaining, which includes a full reimbursement of Mrs Y’s care fees. When someone has suffered an injustice, we try to put them back in the position they would have been had that error not occurred. Where that isn’t possible, we will try to think of creative remedies that acknowledge the impact of faults. We cannot remedy injustice to a person who has died, so any remedy in this case would be for the impact of events on Mrs Y’s family. When we recommend a payment, it is often a modest amount whose value is intended to be largely symbolic, rather than purely financial. It is not our role to assess economic losses or award compensation, and we direct people to the courts where that is their primary goal. It is open to Mrs X to pursue a claim for breach of contract.

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Final decision

13. We will not investigate Mrs X’s late complaint because there is not a good reason for the delay in her bringing the matter to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman