North Yorkshire County Council (05C13158)

Adult care services                      Maladministration causing injustice

24 July 2007

The complaint

Mrs R, who needed aftercare under section 117, became a resident in a care home. Her daughter, Mrs S, complained about the issues of payment for care and whether the home selected by the Council could meet her mother’s assessed needs.

What happened

The law and guidance on responsibility for fully funding the costs of aftercare under section 117 is clear. However, there is no specific statutory provision, case law or guidance on whether someone needing section 117 aftercare and wanting to go into a more expensive home can meet the difference between those costs and the costs that a Council would incur for a home that could meet assessed needs equally well.

The Council initially said that only a third party could meet the additional costs of a home chosen by the family for Mrs R. It then reviewed that decision and concluded that it would be reasonable for Mrs R to meet the difference in costs from her own resources.

A home in the Council’s area had vacancies, and the Council said that this home could meet Mrs R’s needs. The Council therefore refused to pay any more than the amount of that home’s fees. However, Mrs R’s care plan included frequent contact with family members. The home that the Council said could meet her needs was in a rural location and difficult for family members to reach. Mrs S complained about the decision that her mother should be placed in this home.

The Ombudsman’s view

The Ombudsman found that the Council:

• had not considered properly whether the home it had identified would meet Mrs R’s assessed needs, nor taken into account the impact on family contact; and
• had delayed reviewing its initial decision about third party ‘top-up’ payments after representations from Mrs S, her MP and her solicitors.

If the Council had considered Mrs R’s assessed needs properly and reviewed its decision about ‘top-up’ payments sooner, unnecessary distress to Mrs S would have been avoided.

The Ombudsman commented:

“In the absence of specific guidance or case law on the subject of ‘top-up’ payments related to Section 117 aftercare, local authorities need to take care when reaching decisions on individual cases. A council should be able to show that it has: considered all relevant factors including the particular circumstances of the individual case; reached a reasoned decision without undue delay; and considered any representations that it receives with an open mind. If this can be shown, I would be unlikely to criticise a council or find maladministration.”

Outcome

The Council accepted that the home chosen by the family was appropriate, and agreed to meet the full costs. It also paid Mrs S £500.

Date Updated: 16/01/09