Summary: Ms F complained that her mother was wrongly charged a contribution to her residential care fees from 2002 to 2021 when she was entitled to free mental health aftercare. She also complained that the Council had not explained how it had calculated the refund or whether it had included interest. The Council has accepted fault, sent its calculations and has offered to make an interest payment and payment to remedy distress. I am satisfied this remedies the injustice caused.

The complaint

1. Ms F complained on behalf of her mother, Mrs B, that she was wrongly charged a contribution to her residential care fees from 2002 to 2021.
2. Ms F complained that, whilst the Council had accepted the care and accommodation should have been provided without charge under section 117 of the Mental Health Act 1983 and had now reimbursed Mrs B’s contributions, it had not explained how this refund had been calculated and whether it had applied interest.
3. Ms F says she had to instruct a solicitor to find out the information needed before she could complain to the Council and wanted the Council to repay her legal fees of £2,560.80. She also said that both her and her mother experienced distress and time and trouble because of the Council’s fault.

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The Ombudsman’s role and powers

4. 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)
5. 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)

6. 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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How I considered this complaint

7. I spoke to Ms F about her complaint and considered the information she sent and the Council’s response to my enquiries.
8. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Mental Health Act 1983

9. A person suffering from a mental disorder may be detained in hospital for assessment and/or treatment under the Mental Health Act 1983. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention can be renewed for another six months.
10. A person can be discharged from the Mental Health Act by a responsible clinician. They will also be discharged if the section runs out and it is not renewed. After discharge, people may agree to stay in hospital as a voluntary or informal patient.

Section 117 aftercare

11. Under section 117 of the Act, councils and NHS commissioners have a joint duty to provide or arrange free aftercare for people who have been detained under certain sections of the Act.
12. Aftercare services must meet a need arising from or related to the person’s mental health disorder and reduce the risk of their mental health condition worsening and the need for another hospital admission again for the mental health disorder. The duty to provide aftercare services continues as long as the patient needs such services.

Mental capacity

13. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. If the person lacks capacity to make decisions about their care, a best interest decision must be made in line with the Mental Capacity Act 2005. A referral to an independent mental capacity advocate may be required in certain cases.
14. If there is a need for continuing decision-making powers and there is no relevant power of attorney, the Court of Protection may appoint a deputy to make decisions for a person.

What happened

15. Mrs B was detained under section 3 of the Mental Health Act 1983 in the 1980s in a different local authority (Council X) area. She was placed in a residential care home in Kent County Council’s area in 1992 by a neighbouring health authority (Health Authority Y). Mrs B’s care was funded under the previous social security benefits arrangements.
16. Following the implementation of the Health and Social Care Act 2001, funding for Mrs B’s placement was transferred to the Council in April 2002. The Council assessed Mrs B’s finances and started charging her a contribution to the costs of her residential care. Mrs B’s section 117 status was not considered during the assessment. Ms F says Mrs B’s pension was paid to the care home, leaving her with a personal allowance.
17. Mrs B moved to a different care home in the Council’s area in 2021. At that point, the Council noted that she was entitled to section 117 aftercare funding. The Council re-assessed Mrs B’s finances backdating a nil contribution from April 2018.
18. Ms F became aware of the matter and wrote to the Council. In July 2022 the Council told Ms F that it had been difficult to establish a start date for the section 117 funding as there was no paperwork regarding a section 3 admission but it was very likely that Mrs B would have been eligible for many years. However, the Council said Mrs B had never made any contributions towards her care and had received her pension directly.
19. Ms F appointed a solicitor to help her establish the amounts contributed by Mrs B and the information she needed to enable her to make a complaint. She has sent evidence of five solicitor invoices totalling £2,560.80. She was appointed Mrs B’s financial affairs deputy in March 2023.
20. Ms F’s solicitor wrote to the Council in April 2023 saying Ms F had not received any supporting documentation to prove that Mrs B had not paid for her care and that the information provided to date was insufficient to enable Ms F to determine how Mrs B’s care had been funded and when she became entitled to section 117 aftercare funding.
21. Ms F made a formal complaint to the Council in August 2023 that section 117 aftercare funding was not in place from 1992 to 2021 and that no information about Mrs B’s funding had been provided despite repeated requests.
22. Having had no response, Ms F came to the Ombudsman in November 2023. She said the issue had caused her mother great distress over the years. Mrs B had been appealing to agencies saying the care home were holding her money and that she had no money. We contacted the Council, which had been seeking legal advice.
23. The Council replied to Ms F in December 2023. It accepted there was fault as it had not taken into account that Mrs B was entitled to free section 117 aftercare when it had determined the contribution she should make to her residential care fees since April 2002. The Council refunded Mrs B with £114,721.36 in January 2024. The Council noted that funding of the section 117 aftercare was the joint responsibility of the placing authorities, i.e. Council X and Health Authority Y.
24. Ms F remained dissatisfied as the Council had not explained how the refund had been calculated and whether it had applied interest.

My findings

25. The Council has accepted there was fault in not providing Mrs B with free section 117 aftercare. It has now refunded her. But it took too long to respond to Ms F’s queries and complaint and did not provide her with enough information to enable her to check the refunded mount. This has caused her time and trouble.
26. In response to my enquiries, the Council provided records showing the payments it had made to Mrs B’s care home from 2002 to 2008. The Council said it had not received contributions directly from Mrs B. Instead these were claimed by the care home and the Council paid the remaining fees to the home. It also submitted Mrs B’s financial assessments from 2008-2021 showing her assessed client contribution for each financial year. The Council had used these records to calculate the refund to Mrs B.
27. The Council also agreed to refund Mrs B with an interest payment which it had calculated in total to be £17,368.50.
28. The Council did not consider the solicitor’s fees should be reimbursed, as Ms F’s concerns could be addressed via the Council’s complaints’ process and Ombudsman free of charge. However, it offered to pay Mrs B £700 to remedy the distress caused by the error and the length of time it took the Council to rectify the problem. It also offered to pay Ms F £300 to recognise the time and trouble taken to resolve the complaint.
29. The Council said it had recently reviewed and updated its procedures in relation to Section 117 aftercare. A new workflow had been included in its client recording system for adults to improve the accuracy of the recording and monitoring of people the Council supports who are eligible for Section 117 aftercare. It was hoped this would prevent people being charged in error.

The Ombudsman’s approach to remedies

30. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. Where the organisation has failed to pay money due to the complainant, we can decide to recommend an additional payment of interest.
31. We will normally consider asking for a symbolic, moderate payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. The amounts offered by the Council are in line with our guidance on remedies.
32. There may be circumstances where it is reasonable for a complainant to have engaged legal help in a matter. But they should not need a solicitor to help them make a complaint to the Ombudsman or council. So, we do not usually recommend that fees for this purpose are reimbursed.

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Agreed action

33. Within a month of my final decision, the Council has agreed to:
• Pay Mrs B £17,368.50 as an interest payment on the contributions she wrongly made on her care.
• Pay her £700 to remedy the distress she has been caused.
• Pay Ms F £300 to acknowledge the time and trouble she has been put to in pursuing the complaint.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman