Summary: Mr X’s representative complained the Council wrongly charged him for a contribution to his residential care fees when he was entitled to free mental health aftercare. His representative also complained about how the Council calculated an interest refund payment on the amount Mr X paid. The Council has accepted fault. It has agreed to make Mr X a suitable interest refund payment and to make him and his mother a payment in recognition of the distress caused to them.

The complaint

1. Mr X’s representative complained the Council wrongly charged him for his contribution to his residential care fees when he was entitled to Section 117 aftercare. The Council has refunded the amount Mr X paid but has not offered to make him a suitable interest payment on that amount. Mr X’ s representative says the Council should reconsider the interest it will pay and make a payment in recognition of the distress caused to him and his mother.

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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. 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

4. As part of my investigation I have:
• discussed the complaint with Mr X’s representative and considered information she provided.
• made enquiries of the Council and considered it response and information it provided.
• considered the relevant legislation and guidance.
• considered our Guidance on Remedies; and
• set out my initial view on the complaint in a draft decision statement and invited Mr X’s representative and the Council to comment.

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What I found

5. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.

What happened

6. In 2015 Mr X was detained under section 3 of the Mental Health Act 1983.
7. In December Mr X was discharged to a residential care home.
8. Following Mr X’s discharge the Council completed a financial assessment. It concluded he should contribute towards his residential care fees.
9. Between December 2015 and August 2022 Mr X made a weekly contribution towards his care costs. Mr X’s mother took on extra work so her son could afford the payments.
10. In September 2022 Mr X’s representative contacted the Council because his mother was concerned that he was in debt. She asked for help with how Mr X’s placement was funded.
11. The Council replied saying Mr X had been assessed to contribute towards his residential care costs.
12. In November Mr X’s representative told the Council Mr X was entitled to Section 117 aftercare.
13. The following day the Council noticed that it had omitted Section 117 aftercare from Mr X’s care record. It accepted Mr X should not have been making contributions to his care costs.
14. The Council refunded the money he incorrectly paid towards his care costs. In January 2023 it made a payment of £19,953.60 covering the period 13 May 2019 to 18 December 2022.
15. In October the Council refunded Mr X £18,050.44 covering the period 9 December 2015 to 12 May 2019.

Mr X’s complaint

16. In May 2023 Mr X’s representative complained to the Council about Mr X being incorrectly assessed and asked to pay contributions for seven years. It asked the Council to pay 8% interest on the amount he paid and to make a payment acknowledging the impact on him and his mother.
17. The Council initially said it was not appropriate to pay interest. It later altered its position and said it would pay 2% interest, totalling £760.10.
18. The Council’s final complaint response also apologised for the time taken to resolve the matter and for the distress caused to Mr X and his mother.
19. Unhappy with the Council’s response Mr X’s representative complained to the Ombudsman.
20. In response to our enquiries the Council said:
• Mr X’s care record was not correctly updated to show he was entitled to Section 117 aftercare because of human error. It has identified two other cases where the same fault has occurred, and it has taken action to reimburse those affected.
• It said it has reviewed its procedures in relation to Section 117 aftercare and it had improved its recording systems to make sure people who are eligible for Section 117 aftercare are identified. This should prevent people being charged in error.
• It accepts its original offer to pay 2% interest on the amount Mr X paid is not in keeping with our guidance on remedies. It says it will make an interest payment in accordance with our guidance. It calculates the interest payment to be £6893.48.
• It also apologised to Mr X and his mother. It offered a symbolic payment to Mr X and his mother of £500 each, in recognition of the distress and time and trouble caused to them.

Finding

21. The Council accepts there was fault in not providing Mr X with free section 117 aftercare. As a result, Mr X made payments of over £38,000 before the error was rectified. This is caused Mr X and his mother injustice.
22. The Council has refunded the amount Mr X paid in error. It has also agreed to refund Mr X with an interest payment for the amount he paid. The payment is in keeping with our guidance on remedies.
23. Mr X and his mother have been caused distress because of the Councils error. To ensure Mr X had funds to cover his outgoings his mother took on extra employment. This caused her significant distress and avoidable time and trouble. I note that despite his mother’s best efforts there were occasions when Mr X did not have sufficient funds. This caused both Mr X and his mother avoidable distress.
24. Mr X’s representative complained to the Council about this matter in May 2023. It initially refused to pay any interest on the sum overpaid by Mr X. When it changed its position in November 2023 it wrongly applied our guidance, despite referring to it. This is fault. As a result, Mr X and his mother were caused further time and trouble in pursuing a resolution.
25. The Council has explained what action it has taken to prevent a recurrence of the fault I found and so I do not consider it is necessary to make any service improvement recommendations.

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Agreed action

26. Within one month of my final decision the Council will:
• Send Mr X and his mother a letter apologising for its error and for the distress caused to them both.
• Pay Mr X an interest payment of £6893.48.
• Pay Mr X £500 in recognition of the distress caused to him.
• Pay Mr X’s mother £1000 in recognition of the distress and avoidable time and trouble caused to her. Our Guidance on Remedies usually recommends payments of up to £500 for distress. However, I consider the impact on Mr X’s mother of taking on extra work over seven years and the stress of worrying about his financial situation is significant and warrants a higher payment.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. 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 final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman