Summary: Mrs X complained about a decision to charge a top-up fee for her mother’s care home placement. She said the organisations did not offer her mother a suitable alternative that was within budget. We found no fault with the organisations’ decision to charge a top‑up fee. We did find that Mrs X’s mother’s best interests were not considered sooner, after her capacity to understand decisions about her care declined. This meant top-up fees were charged for longer than needed. We recommended the organisations reduce the top-up fees they have invoiced for.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y about London Borough of Bromley (the Council), NHS South East London ICB (the ICB) and Oxleas NHS Foundation Trust (the Trust). Mrs X complains the Council said her mother would need to pay a top-up fee for her care home placement between 17 April and 11 October 2024. She says Mrs Y was not offered a suitable alternative placement and disputes that the top-up fee should be payable.
2. Mrs X says the failings have caused her and her mother significant distress and financial loss. Mrs X wants the organisation to withdraw the charges.

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The Ombudsmen’s role and powers

3. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
4. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
6. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
7. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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How I considered this complaint

8. I considered evidence provided by Mrs X and her professional representative, the Council, the ICB and the Trust. I have also considered relevant law, policy and guidance.
9. All parties had an opportunity to comment on my draft decision. I considered these comments before reaching a final decision.

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What I found

Legal and administrative context

Section 117 Aftercare

10. 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 section 117 cannot be charged for. This is known as section 117 aftercare.
11. Councils and ICBs have a legal duty to provide Section 117 aftercare, however NHS Trusts usually deliver the health parts of these aftercare plans. Therefore we consider Councils, ICBs and Trusts are responsible for the purposes of our investigation findings.

Accommodation under section 117 Aftercare

12. If a local authority is providing or arranging accommodation as part of a patient’s after-care, the patient and/or friends or relatives identified in regulations may make top-up payments to enable the patient to live in their preferred accommodation if certain conditions are met. These are set out in the Care and Support Statutory Guidance 2014.
13. Authorities must ensure at least one accommodation choice is available and affordable within the person’s personal budget. However, a person must also be able to choose alternative accommodation, including a more expensive setting. In these circumstances the person would need to pay the extra cost. This is called a ‘top-up’.

Mental Capacity Act

14. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
15. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.

Lasting Power of Attorney

16. The Mental Capacity Act 2005 introduced the ‘Lasting Power of Attorney’ (LPA). An LPA is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision on their behalf. The decision must be in the person’s best interests.

Best Interest Decisions

17. A key principle of the Mental Capacity Act 2005 is that any decision made on behalf of a person who lacks capacity must be made in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
18. If there is a conflict about what is in a person’s best interests, the Court of Protection might be asked to decide what is in the person’s best interests.

Hospital Discharge

19. The Department of Health and Social Care issued statutory guidance: Hospital discharge and community support guidance (the National Discharge Guidance) in April 2022 (updated January 2024). This provides guidance to NHS bodies and local authorities on discharging adults from hospital. It said local areas should adopt discharge processes that best meet the needs of the local population. This guidance sets out different pathways (pathways 0,1,2 &3), dependant on the person’s needs. Pathway 0 being no new or extra health or social care needs, to pathway 3 for those unable to return home and are likely to need long-term residential or nursing home care.

Background

20. Mrs Y had a previous admission to hospital under the Mental Health Act and was eligible for section 117 aftercare. In late 2023 Mrs Y went into hospital with worsening agitation and generalised decline in mood and memory. The hospital treated her for an infection and noted a diagnosis of dementia.
21. By February 2024 Mrs Y was ready to leave hospital, but the discharge team did not consider it would be safe for her to return to her own home. It was agreed that Mrs Y would move to a care home placement, which would be funded by section 117 aftercare.
22. Mrs Y moved to a Care Home (Home A) under Discharge to Assess (D2A) arrangements. This was so health and social care teams could assess Mrs Y’s needs to identify a suitable longer-term placement. Mrs X was unhappy with the placement because it was out of the local area. However, none of the local care homes with availability could meet Mrs Y’s needs at that point.
23. The Council completed a needs assessment for Mrs Y in March 2024. This recommended Mrs Y should move into a residential care home to receive her care. The assessment noted Mrs Y’s family agreed with this and expressed a preference for this to be in, or close to, where Mrs Y’s own home was.
24. In April 2024, the Council identified a care home (Home B) that could meet Mrs Y’s care needs in the locality Mrs X had asked for. This was at the standard tariff for the Council and NHS for residential care and therefore section 117 aftercare funding would cover all fees.
25. Mrs X and Mrs Y declined the placement at Home B and Mrs Y remained at Home A. As Home A charged a fee over the Council and NHS standard tariff, the Council said Mrs Y would need to pay a top-up fee to stay there. The Council charged Mrs Y a top‑up fee from 17 April 2024.
26. Mrs Y’s health declined and in October 2024 the mental health team completed an assessment under the Mental Capacity Act to determine if Mrs Y could understand decisions about delivery of her care. The assessment determined Mrs Y did not have capacity to make understand and make an informed decision about where she should live.
27. A Best Interests meeting considered Mrs Y should not move from Home A because of her increased frailty. The Council agreed to meet the full fees from 11 October 2024 when the Best Interests decision was made.

My findings

28. Mrs Y moved to Home A under D2A arrangements. This was therefore a short-term placement. The NHS funded her care until the Council completed a Section 117 aftercare review and Care Act assessment to determine her needs. Mrs X had previously said she wanted to find a suitable care home near to where Mrs Y had lived before going into hospital. Mrs X had expressed concerns about where Home A was and felt a care home where Mrs Y knew the area better might help her settle.
29. The Care Act assessment and Section 117 review completed in March 2024 noted Mrs Y’s diagnosis of dementia and previous mental health issues. It also noted language difficulties affected her ability to interact and engage in conversation. The Care Act assessment recorded that Mrs Y was “unable to understand information retain or use the information to make decision.”
30. However, Home A was a D2A placement and was not a long-term placement. The plan was always to identify a different suitable placement that could meet Mrs Y’s care needs. The Council’s and ICB’s obligation was to ensure it offered at least one placement that could meet Mrs Y’s care needs and was within the agreed personal budget. Home A charged higher fees than the agreed budget so the Council would not have offered this as a choice before considering other care homes within budget.
31. The Council identified Home B as a potentially suitable placement for Mrs Y that could meet her care needs and was within budget. However, Mrs X did not consider Home B was suitable. One of her concerns was that staff could not speak Mrs Y’s first language.
32. I can see from the records the Trust and the Council recorded and considered Mrs Y’s communication difficulties when assessing her needs. The assessments recorded she could understand simple English, although I accept Mrs X has explained to us that this was becoming more difficult as Mrs Y’s confusion increased. I am satisfied the Council took account of Mrs Y’s language and communication needs. It then offered Home B which had agreed could meet Mrs Y’s assessed needs.
33. I have seen no evidence the Trust or the Council considered or completed a MCA assessment for Mrs Y when they were considering Mrs Y’s longer-term care arrangements. However, there is some conflicting information around this. The records suggest Mrs Y could not understand or retain information to make decisions. However, Mrs X noted in correspondence with the Council that Mrs Y had regained capacity, was settled at Home A and wished to stay there.
34. Under the MCA, capacity is presumed unless there is proof to the contrary. If Mrs Y had the ability to understand decisions about her care, the decision to stay at Home A rather than move to Home B, was her choice.
35. On the other hand, the Trust and/or the Council could have completed a MCA assessment and found Mrs Y could not understand and make decisions about her care location. In that case it would have been appropriate for Mrs X, as Lasting Power of Attorney, to make a decision about Mrs Y staying at Home A. This would have been in the knowledge this would mean a top-up fee was payable. I therefore consider it is unlikely the outcome (the decision for Mrs Y to stay at Home A, with a top-up fee in place) would have been different regardless of whether a MCA assessment had been completed.
36. I find no fault by the Council, the Trust or the ICB about the decision to allow Mrs Y to remain at Home A, and to charge a top up fee. The records show an alternative suitable placement within budget was offered and the Council explained the costs of Home A to Mrs Y and Mrs X. The decision was therefore for Mrs Y and her family to make.
37. I understand Mrs X has raised concerns that Home B may not have had a vacancy and the Council should therefore not have considered this as a suitable alternative. However, Mrs X did not wish to proceed with this placement, so this information was no longer relevant. Had Mrs X or Mrs Y accepted the placement and later found it to be unavailable, this would have changed the outcome. The Council would have needed to find another suitable placement before top-up charges for Home A could be considered. We cannot however speculate on something that did not happen.
38. In July 2024 the Trust updated Mrs Y’s section 117 aftercare review. The Trust noted Mrs Y:
• “…appeared confused and did not sit still throughout the time of my visit. She did not engage with the review due to her cognitive impairment which seem to have deteriorated since the last time I saw her.”
39. It also noted Mrs Y:
• “…presents with delusional beliefs, often informing the staff that there is a couple in her bed.”
40. The Trust recorded that Mrs X raised several concerns about drastic changes with her mother’s behaviour and wanted to consider the possibility of Mrs Y moving care home to one closer to her local area.
41. The Trust recorded it:
• “…cannot recommend a move at this time due to her current presentation. I emphasized that moving her would not improve her situation and could cause even more confusion.”
42. I have seen no evidence to show the Trust or the Council considered Mrs Y’s placement at Home A again until October 2024. This was after they completed the MCA assessment and Best Interest decision. The Best Interest decision was that Mrs Y should remain at Home A. At this point the Council and NHS agreed the top-up fee should no longer be payable by Mrs Y.
43. The rationale provided for the MCA assessment and Best Interest decision was a decline in Mrs Y’s health. However, the records show this decline was evident earlier.
44. I consider the records show strong evidence that Mrs Y may lack the ability to understand decisions about her care in July 2024. This should have prompted consideration of a MCA assessment and a Best Interest decision about Mrs Y’s accommodation. This did not happen for a further three months. This is fault.
45. This does not necessarily mean an alternative care home, within budget would have been available in July 2024, or that a Best Interests decision then would have reached the same decision as in October 2024. However, on the balance of probability, I consider the outcome of an earlier Best Interest decision would likely have been the same. This is based on Mrs X’s accounts of her mother’s decline and the clinician’s findings at the section 117 aftercare review in July 2024. This included the specific advice that Mrs Y should not move to another care home.
46. It therefore follows that logically, agreement to fully fund Mrs Y’s placement at Home A from around this date would have been reached. I have taken account of the time to arrange a MCA assessment and Best Interest meeting. I consider Mrs Y is likely to have paid approximately three months in top-up fees that should have otherwise been funded by the Council and NHS under her section 117 aftercare.

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Action

47. Within one month of my final decision the Council, the Trust and the ICB have agreed to:
• Apologise to Mrs X for the distress they experienced due to the faults identified in this decision.
• Amend the invoice to Mrs X to remove the top-up fees charged for a period of three months.
• Remind staff of the need to consider mental capacity assessments and Best Interest decisions when there is a change in a person’s presentation. This is particularly important where there is a request to change the care arrangements by family/LPA.
48. The organisations should provide us with evidence they have complied with the above actions.

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Decision

49. I find fault causing injustice. The organisations have agreed actions to remedy this complaint. I have therefore completed my investigation.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman