The Ombudsman's final decision
Summary: We will not investigate this complaint about adult social care fees allegedly owed from an estate. The complaint is a late complaint as the complainant has known about it for more than 12 months. The Council failed to set up a deferred payment agreement, but that does not cause significant injustice. So even if it were not late, we would not investigate. If there was no fault the disputed fees would have been paid under the terms of the deferred payment agreement.
The complaint
Ms D says the Council failed to put in a place a deferred payment agreement for Ms E’s care fees. Therefore, after Ms E’s death the Council did not have a legal charge on Ms E’s property and there was no legal basis for the administrators of Ms E’s estate to pay the Council. Ms D says it has taken much time over the last two years researching and understanding what happened, which has had an impact on her health and wellbeing. Ms D wants the Council to waive the debt or agree a lesser amount.
The Ombudsman’s role and powers
We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by: their personal representative (if they have one), or someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended) Ms D is a personal representative of Ms E’s estate.
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) 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.
(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 has known about the Council’s actions for more than 12 months and has given no good reason why she could not complain to the Ombudsman sooner. This is a late complaint in accordance with paragraph four.
Even if there is a good reason for the Ombudsman to exercise discretion to investigate this late complaint, I do not consider we should do so. This is because there is not a significant enough injustice to warrant investigation.
When someone receives adult social care, the Council must assess what, if anything, they can afford to contribute to their care. The Council did this and assessed Ms E could contribute. Where a person’s money is tied up in property, they can ask for a deferred payment agreement. This means the Council pays the person’s care fees until the house is sold and the person can pay the Council back. The Council should get a legal charge on the property to ensure repayment and protect the public funds it has used.
If there was no fault by the Council, the requested deferred payment agreement would have been in place and Ms E’s estate would have paid her care fees to the Council after her death. The injustice in this case is to the Council and the public purse, because the Council failed to ensure it had a basis to recover the money it had paid out for the benefit of Ms E. There is nothing the Ombudsman could achieve by investigation because the Council cannot now rectify the error and put in place a deferred payment agreement following Ms E’s death.
It is unlikely the Ombudsman would find fault with the Council pursuing money owed to it, because the Council has a responsibility to the public purse. It seems Ms E needed the care, received it, and always knew she was responsible to pay for it. The failure of the Council to legally ensure a way to recover the money does not mean it cannot still expect the debt to be paid. It is unlikely the Ombudsman would recommend the requested remedy of the Council waiving the debt or reducing it.
It is a matter for the administrators of Ms E’s estate to decide how to proceed, and for the Council to decide whether to take legal action to pursue the debt if it remains unpaid. If the Council pursues to court the court can then decide the disputed debt.
Although Ms D says she has had personal injustice in terms of time and trouble, I do not consider that would justify an Ombudsman investigation where we cannot achieve a remedy for the substantive matter complained about.
Final decision
We will not investigate Ms D’s complaint because it is a late complaint. Even if there are good reasons to exercise discretion, I do not consider we should do so. There is not a significant enough injustice to Ms D or Ms E’s estate to justify an investigation.
Investigator's decision on behalf of the Ombudsman