Decision Date: 11 February 2025
Summary
Mr X complained that the Council delayed assessing Mr Y’s care needs and arranging funding, when his capital depleted once he was in a care home, causing him avoidable stress, as the care home pursued him for outstanding fees. The Council agreed to apologise, compensate and share the learning with staff.
What happened
Mr X went into a care home in 2022 under his own private arrangement. By September his capital had depleted under the threshold. [We infer from the report that he had moved to be near relatives, and the Council in the area did not know the law of ordinary residence for privately funding people.]
The Council only carried out a Care Act assessment in March 2023 and a financial assessment in November 2023. It was willing to backdate the fees to April 2023 but Mr X had needed funding in September 2022.
Mr X complained that the Council:
- Stated (initially) that it was not responsible for providing Mr Y’s adult social care and financial support and directed him to approach a different council;
- Delayed carrying out a Care Act assessment;
- Delayed conducting a financial assessment; and
- Initially agreed to backdate funding only to April 2023, leaving the family responsible for costs from September 2022.
Mr X said there had been poor communication and delays in responses, which caused him stress and avoidable time and trouble in pursuing the matter. The care home had also threatened legal action due to outstanding costs, which caused further stress.
What was found
Mr X complained in June 2024, and by August, the Council acknowledged that financial support should have been backdated to September 2022, when Mr Y became eligible due to his capital falling below the threshold. To assess the correct contribution, the Council requested additional documentation from Mr X. While Mr X was dissatisfied with this, this was not considered fault on the Council’s part, as it was necessary for the financial assessment.
By October 2024, the Council outlined its calculation of the contribution for the period from September 2022 to April 2023, agreed to issue a credit for overpayments, and promised to resolve the care home’s outstanding fees.
Had the complaint been pursued further, an investigation would likely have found the Council at fault for failing to backdate financial support to September 2022, causing unnecessary financial strain on the family. The Council later corrected its mistake as it was responsible for the delay in recognizing Mr Y’s eligibility so all it had to do was apologise.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
It would have seemed unjust that the Ombudsman decided not to reopen the investigation due to the 12-month period having passed, particularly given the likelihood that the Council was at fault for its initial failure to backdate support. But since it agreed to pay that sum back anyway, there was no real need to comment further.
The £300 remedy for the injustice was sufficient, in that context.
Regarding delay the Ombudsman’s use of the discretion whether to investigate or not, when there is good reason for the delay, is hard to analyse. Individuals dealing with trauma, struggling with mental health, or governmental challenges may not recognize the significance of wrongdoing until later.
The wording “good reason” is open-textured, and some would say that that is good, allowing for discretion to be exercised according to public law principles, even if it causes uncertainty for complainants. On the other hand, this may undermine public confidence and may even encourage local councils to ignore systemic issues, knowing that many complaints are likely to be dismissed simply due to a delay in reporting.
Additionally, the Ombudsman’s discretion can be problematic because of its discretion to stop an investigation if it is satisfied with the action the organization has taken or plans to take, under section 24A (7). Organisations may feel they can avoid full accountability by offering minimal corrective actions but the Ombudsman will sometimes investigate simply in order to increase the compensation offered.
While the service provided by the Ombudsman is free, there is a significant emphasis on the appropriate use of public funds. Although financial responsibility is important it can lead to a justification for triaging too many cases in order to be cost-effective, thus causing another layer of perceived injustice.
Overall, the rigid time restriction, broad discretionary powers and financial justification can all work together to obscure a path justice rather than deliver it.
Here, we think that the right decision was taken, but would have liked to have been able to understand whether the private client fee rate was refunded, regardless of the rate the Council would have paid had it acted more promptly.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Tameside Metropolitan Borough Council (24 011 622) report.
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