The Ombudsman's final decision
Summary: We will not investigate this complaint about privately arranged adult social care. The legality of the contract is better considered by a court. It is unlikely we would find fault with the Care Provider chasing for fees for a service it has provided. It is unlikely we would add to the Care Provider’s investigation or achieve a different outcome.
The complaint
Mr B says the Care Provider gained money illegally by entering a contract with a person (Mr C) who did not have mental capacity to understand the financial agreement. Mr B says the company has acted fraudulently and caused a financial impact to Mr C.
The Ombudsman’s role and powers
We may investigate a complaint on behalf of someone 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) Mr C has court appointed deputies who have authorised Mr B to raise a complaint, so we have accepted Mr B as suitable.
We investigate complaints about adult social care providers. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe: the action has not caused injustice to the person who complained, or the injustice is not significant enough to justify our involvement, or it is unlikely we could add to any previous investigation by the care provider, or it is unlikely further investigation will lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, sections 34B(8) and (9))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr C lived for eleven months at care homes operated by Anchor Hanover Group (the Care Provider). The Care Provider is chasing for unpaid fees. It has apologised for contacting Mr C directly when he could not manage his financial affairs, it has explained it did not know at that time who was appointed to manage Mr C’s finances.
It is unlikely we would find fault with the Care Provider pursuing fees for a service it provided to Mr C. Mr B says Mr C could not enter a contract. Mr C lived at the care homes for eleven months; the Care Provider has explained there would therefore be an implied contract in place for its service. The dispute over fees would be better decided by a court.
Mr B alleges fraud; that is a criminal matter and not something the Ombudsman can decide.
It is unlikely we would find fault with the Care Provider referring to social services and the local authority safeguarding team when it felt Mr C no longer had capacity to manage his affairs. Any costs such as legal costs incurred by Mr C when he no longer had capacity to manage his affairs are not solely caused by the actions of the Care Provider. It is unlikely we would find the Care Provider should be responsible for such costs.
Final decision
We will not investigate Mr B’s complaint because it is unlikely we would add to the Care Provider’s investigation or reach a different outcome. The court would be better placed to consider the contractual issues, and the police would be better placed to deal with allegations of fraud.
Investigator's decision on behalf of the Ombudsman