The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint, made on behalf of Mrs X, about the Council-commissioned care provider losing and not reimbursing her for lost possessions and clothes.
There is no additional evidence regarding Mrs X’s possessions at the home which would allow us to reach a different outcome and find the Council or care firm liable for Mrs X’s losses. Liability for property loss is a legal issue which can only be determined by an insurer or by the courts. It would be reasonable for Mrs X to pursue the complaint at court to achieve the financial compensation sought.
The complaint
Mrs X was discharged from hospital in 2021, to a care home commissioned by the Council. Her son Mr X complains on Mrs X’s behalf that the care home did not return all her clothing and possessions when she left the home about seven weeks later.
Mr X says Mrs X is out of pocket in the sum of over £300. He wants her to receive compensation for the cost of the replacement property she has bought, or to have the lost property returned.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: we could not add to any previous investigation by the organisation; or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
The Ombudsman expects care providers to make an inventory of residents’ possessions when they go into a home. But if we were to investigate what happened when Mrs X entered the home, there is no evidence we could seek which would enable us to make a finding that the care home had the property now claimed as lost. We could not find out whether the care provider is responsible for its loss and reach a different outcome.
The core complaint is a claim that the actions or inactions of the Council‑commissioned care provider led to the loss of Mrs X’s property. Mr X considers they should be held liable for that loss by financially compensating Mrs X. The complaint is a claim of liability for financial loss. Liability is a legal matter only an insurer or a court may determine. We cannot make decisions on claims of legal liability for property loss.
Mrs X may wish to make a claim against the care provider’s or Council’s insurers. If they deny liability, it would be reasonable for her to pursue the matter in court. This is because the court can make a legal ruling on the core liability issue, and order, as it finds appropriate, the kind of financial compensation Mr X seeks for Mrs X. A court can consider the evidence and make a decision which would be binding and enforceable on the parties involved, unlike an Ombudsman’s decision which could only make recommendations.
Final decision
We will not investigate Mrs X’s complaint because: there is no further evidence regarding Mrs X’s possessions at the home which would allow us to reach a different outcome; and legal liability for property loss is a matter which can only be determined by an insurer or ultimately by the courts, not by the Ombudsman; and it would be reasonable for Mrs X to put the claim before a court to pursue the compensation outcome sought.
Investigator's decision on behalf of the Ombudsman