The Ombudsman's final decision
Summary: We will not investigate this complaint about adult social care. The disputed debt due from the estate would be best decided by a court.
The complaint
Ms C says she was in discussion with the Council in 2019 about invoices for Ms D’s care dating back to 2017. Ms C says she then heard nothing until after Ms D died in 2022 and the Council started chasing payment. Ms C says Ms D’s estate should not have to pay because the care provided was poor, there is no evidence Ms D agreed to the care, and it is unethical to not chase payment until after Ms D died.
The Ombudsman’s role and powers
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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: any fault has not caused significant enough injustice to the person who complained to justify our involvement; or further investigation would not lead to a different outcome; or we cannot achieve the outcome someone wants; or there is another body better placed to consider this complaint; or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms D received adult social care in her own home, arranged by the Council. When the Council arranges care for someone it must assess what, if anything, they can afford to pay for that care. Ms D did not want to share information about her finances so must pay the full cost of her care. The Council says professional officers completed a mental capacity assessment at the time and found Ms D had capacity to make this decision.
Ms C says there is no evidence Ms D agreed to the care. However, Ms D received care support for several years, so it is more likely than not she wanted the care and received a benefit from it. Ms C says the care support was poor, the Council says no complaint was made at the relevant time and it is now too late to consider. There would be no worthwhile outcome now achievable to warrant an Ombudsman investigation. If we found Ms D received poor care and it caused her an injustice, we could provide no personal remedy for her injustice as she has since died.
Ms C says she was in contact with the Council in 2019 and then heard nothing further until 2022 when it chased the invoice. However, both parties must take responsibility for that. Ms C could have raised her complaint with the Ombudsman if the Council was no longer responding. We would expect concerns of poor care to have been pursued when Ms D was still receiving the care. Although the Council delayed pursuing the payment for several years, it did not cause a significant injustice as all involved were aware of the debt before the 2022 invoice.
The outstanding issue is therefore the invoice for which the Council is seeking payment from the estate. The Council has a responsibility for public funds and to pursue debts owed to it. The Council had to tell those responsible for Ms D’s estate that it was a creditor, so it was not unethical of it to send an invoice in 2022. The Council can pursue this debt to court and the executor of Ms D’s estate can dispute in court why they will not pay. The court can then decide if the debt is owed from Ms D’s estate.
Final decision
We will not investigate Ms C’s complaint because Ms C knew about the issues in 2019 so it is a late complaint. But even if it was not, there is no worthwhile outcome achievable by an Ombudsman investigation. Ms D has died so we could provide no personal remedy to her if she received poor care. The dispute over the debt owed from the estate would be better considered by a court.
Investigator's decision on behalf of the Ombudsman