Summary: Mrs X complained about how the Council funded her father, Mr Y’s, mental health aftercare. There was some fault in how the Council made its decision not to backdate Mr Y’s personal budget in 2022, but this did not affect the outcome. However, the Council also failed to take into account that it was previously paying higher costs which meant that Mr Y’s wife, Mrs Y, paid too much towards his care home fees. The Council agreed to apologise and refund the difference to Mrs Y.

The complaint

1. Mrs X complains the Council failed to offer a proper choice of care homes for her father, Mr Y, after a previous care home placement broke down in January 2020. She also complains the Council wrongly refused to backdate full funding for Mr Y’s care home when it reviewed this in 2022. As a result, Mrs X says her mother, Mrs Y had no choice but to pay a top-up fee for Mr Y’s care home between January 2020 and July 2022. She wants the Council to refund the top-up fee Mrs Y paid.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. I have investigated how the Council made its July 2022 decision whether to backdate its extra contribution to Mr Y’s care costs.
7. I have not considered how the Council arranged for Mr Y to move care homes in 2020. Mrs X and Mrs Y’s complaint about this is late and I am not satisfied there are good reasons to investigate this part of the complaint now. There are no good reasons why Mrs X or Mrs Y could not have complained to the Ombudsman sooner. While some of the time covered the COVID-19 pandemic, this does not fully account for all the delay.

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How I considered this complaint

8. I considered:
• the information Mrs X and Mrs Y provided, and discussed the complaint with them;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
9. Mrs X, Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Costs of mental health (section 117) aftercare

10. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes.
11. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
12. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
13. Councils must assess how much it would cost to meet someone’s aftercare needs including, if applicable, the costs of any care home placement. This is called a personal budget.
14. If no suitable accommodation is available at the amount identified in the personal budget, a council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, a council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
15. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up;
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themselves; or
• in cases of section 117 aftercare, the person can afford to pay the top-up themselves.

Background

16. Mrs X’s father, Mr Y received section 117 aftercare arranged by the Council, originally in Care Home A. The costs of this care were met in full by the Council and local health authorities.
17. In late 2019, Mr Y’s placement at Care Home A broke down and the care home served Mr Y notice to move. The Council and Mr Y’s family tired to find a new care home for Mr Y before the notice expired, but the family could not find a care home they were satisfied with.
18. In early January 2020, the Council arranged a placement for Mr Y at Care Home B. The Council referred to this as an “emergency placement” as it had to arrange this at short notice. Care Home B cost slightly more than the Council had been paying at Care Home A, but it covered the full cost as it was the only option available at the time.
19. Mrs Y told the Council, at the time, that while she believed Care Home B provided good care for her husband he did not “fit in” there and she would like him to move to a different care home, preferably closer to her. The Council gave Mr Y’s family a list of care homes in the area, as they had previously expressed their wishes to agree any care home placements.
20. Mr Y’s family identified a different care home, Care Home C, that they wanted Mr Y to move to. The Council explained that Care Home C cost more than Mr Y’s personal budget and that, if they wanted Mr Y to move there, a top-up would be required. Mrs Y agreed to pay the top-up and signed an agreement with the Council that she would pay this. Mr Y moved to Care Home C in late January 2020.

The Council’s 2022 decision

21. In April 2022, the Council started to arrange a review of Mr Y’s care. It said this had been delayed by the COVID-19 pandemics. Around this time, the Council’s records mention that Mrs Y was not happy about continuing to pay the top-up as she believed the full costs should be covered under section 117 aftercare.
22. The Council completed its review in July 2022. It decided it would not be in Mr Y’s best interests to move him from Care Home C. Therefore, since Mrs Y could no longer afford the top-up, it would pay the full costs of Mr Y’s care fees in future.
23. However, it decided that it would not refund the top-up fees Mrs Y had paid since January 2020 because it was Mrs Y’s choice for Mr Y to move to Care Home C. It also said that both Care Home A and Care Home B were other suitable placements, available at the time, which could have met Mr Y’s needs without a top-up.
24. Mrs X and Mrs Y complained to the Council and Ombudsman about this decision in June and July 2023.

My findings

25. As explained above, I have not investigated how the Council arranged for Mr Y to move care homes in 2020. Mrs X and Mrs Y’s complaint about this is late and I am not satisfied there are good reasons to investigate those events now. Therefore, I have restricted my findings to how the Council decided, in July 2022, not to backdate the Mr Y’s revised personal budget to 2020.
26. The evidence shows the Council had access to, and considered, Mr Y’s social care records, including care plans and case records from 2020 when making its 2022 decision. Those records support the Council’s view that Mr Y’s move from Care Home B to Care Home C was driven by his family, rather than him having to leave Care Home B.
27. However, in my view the Council was at fault for deciding that Care Home A could have met Mr Y’s needs at the time. In making that decision, the Council focused on the reason for the placement breaking down. The reason for the placement ending was not relevant. Whatever the reason, Care Home A was no longer available to Mr Y and therefore the Council should not have considered it to be an available alternative.
28. I do not consider the Council was a fault for saying that Care Home B could have met Mr Y’s needs at a lower cost. There was no evidence to suggest Mr Y’s placement at Care Home B was only available on a short-term basis or that Care Home B could not have met his needs in the longer term. There is evidence to show that everyone agreed Mr Y was being cared for well at Care Home B. Although there is one mention of this being a short-term placement, in my view this was in the context of reassuring Mr Y’s family that if they wished for Mr Y to move to a different care home of their choice, this would be possible.
29. Although there was fault in part of how the Council decided that Care Home A was available to Mr Y at the time he moved, I do not consider this affected the outcome. The Council still had enough information to decide that it was Mr Y’s family’s choice for him to move to Care Home C and that Mrs Y decided on this knowing that it would require her to pay a top-up.
30. However, Care Home B required a top-up above what the Council would normally have paid for Mr Y’s care. The Council failed to take this into account when setting the personal budget for Mr Y at Care Home C. This meant that the top-up Mrs Y paid was £30 a week more than it should have been. The Council accepted in its response to my enquiries and said it would refund Mrs Y the difference; a total of £3,810.
31. Given the period over which Mrs Y over-paid the top-up and the amount of the refund, the Council should also pay Mrs Y interest on that sum to recognise the effect of inflation since she made the payments.

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Agreed action

32. Within one month of my final decision the Council will:
• apologise to Mrs Y for not having taken into account the £30 extra it was paying at Care Home B when calculating her top-up payments between January 2020 and July 2022;
• pay Mrs Y £4,794, made up of the £3,810 refund it has already offered and further interest to reflect the effects of inflation.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. There was some fault in how the Council made its decision not to backdate Mr Y’s personal budget in 2022, but this did not affect the outcome. However, the Council also failed to take into account that it was previously paying higher costs which meant that Mrs Y paid too much towards Mr Y’s care home fees. The Council agreed to apologise and refund the difference to Mrs Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman