Summary: We do not consider Leicestershire County Council acted with fault when it decided certain care homes could meet Mrs D’s assessed needs on discharge from hospital. The Council did not act with fault when it decided she should pay a top-up, despite jointly funding that placement with the NHS Leicester, Leicestershire and Rutland Integrated Care Board under Section 117 of the Mental Health Act. However, the Council’s communication around the Section 117 top-up arrangement and invoices amounted to fault which caused Mrs D’s daughter, Miss D, inconvenience and stress. But we consider the Council has already remedied that injustice to her.

The complaint

1. Miss D complains on behalf of her mother, Mrs D, about Leicestershire County Council (the Council) and NHS Leicester, Leicestershire and Rutland Integrated Care Board’s (the ICB) duty to support her mother under Section 117 of the Mental Health Act. Specifically, she says:
• The Council’s initial choice of care home would not have met her mother’s Section 117 aftercare needs. Also, another care home was full. So, Miss D chose a care home which needed a top-up.
• The Council failed to clarify if it should have funded Mrs D’s care home in full, under Section 117.
• The Council took 12 months to share invoices which left Miss D with a lump sum of arrears, and continuing accommodation charges.
2. Miss D feels her mother has suffered financially at having to pay a top-up. Also, Miss D has suffered stress, anxiety, and the events have impacted her business. She would like the Council and ICB to apologise, pay a financial remedy, waive any arrears and repay any care costs paid unnecessarily.

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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 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

6. I considered evidence provided by Miss D and the organisations as well as relevant law, policy and guidance.
7. Miss D and the organisations had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Section 117 aftercare

8. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. 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. 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.

Top-up payments

9. The Council’s ‘Care Home Funding’ guidance (2023) states “…the Council must make sure that you are offered at least one place that is suitable in relation to your assessed needs and can be paid for within the Council’s banded rates. This means that we must offer you an affordable option”.
10. It then says: “You may have the option to use a “First Party Top-Up” arrangement. This is where you can pay the extra cost. You can do this if…You are receiving accommodation provided under S117 ‘after care’ of the Mental Health Act. If you do not meet those criteria one or more Third parties could pay the top-up for you. This is called a “Third Party Top-Up” arrangement”.
11. The ‘Mental Health Act 1983: Code of Practice’ (the Code) is statutory guidance. This means that councils and ICBs must follow it, unless there are good reasons not to. The Code says that Section 117 aftercare can include accommodation and continues as long as the person needs these services. Section 33.18 of the Code says: “…the patient and/or friends or relatives…may make top-up payments to enable the patient to live in their preferred accommodation if certain conditions are met”.
12. The Care and Support Statutory Guidance (the CSSG), accompanying the Care Act 2014, expands on what those certain conditions are in Annex A. Specifically in the section: ‘Choice of accommodation and mental health aftercare’.
13. ‘The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014’ (the Regulations) 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.

NHS Quick Guide: Discharge to Assess

14. It defines ‘Discharge to Assess’ as: ‘Where people who [no longer need hospital treatment], but may still require care services, are provided with short term funded support to be discharged to their own home (where appropriate) or another community setting. Assessment for longer-term care and support is then undertaken in the most appropriate setting and at the right time for the person.
15. Principles for Discharge to Assess model include:
• Putting people and their families at the centre of decisions, respecting their knowledge and opinions and working alongside them to get the best possible outcome.
• Take steps to understand both the perspectives of the patient and their carers… [and] their needs…’

Background

16. In 2023, Mrs D lived with her daughter, Miss D, and received a package of care in the community funded under Section 117.
17. In November 2023, a hospital admitted Mrs D with physical health problems.
18. On 4 and 5 December 2023, a Community Support Worker (CSW) for the Council assessed Mrs D’s needs for support on discharge. Miss D told the CSW she could not support Mrs D further at home. The CSW decided to discharge Mrs D under the Discharge to Assess pathway. All parties agreed Mrs D needed 24/7 support in a care home, with a further assessment in the community. The Council agreed to fund any care home placement under Section 117 which was within its banded rates. The CSW told Mrs D and Miss d if they chose a placement costing more than the banded rate, Mrs D must pay a top-up.
19. The Council found two care homes within its banded rate, which could support Mrs D’s assessed needs. Mrs D and Miss D refused Care Home 1 because it was too far away. The CSW then provided two more options. Care Home 2 was within the Council’s banded rate and Care Home 3 needed a top-up (£225 per week). Mrs D and Miss D agreed to go with Care Home 3 which they had already seen and preferred.
20. On 12 December 2023, Mrs D moved to Care Home 3 from hospital. Miss D told the Council she accepted she may not be able to afford the placement in the long term. Miss D later signed a third-party top-up agreement.
21. On 21 December 2023, the CSW met with Mrs D and Miss D, who sought a more affordable placement but did not want to move from Care Home 3. Miss D had concerns about Care Home 2 having too many residents with dementia but the CSW still felt it could meet Mrs D’s needs. A week later, Mrs D moved to a cheaper room at Care Home 3 which reduced the top-up (£89 per week).
22. In January and February 2024, Miss D questioned why Care Home 3 was chasing her to pay for the cost of the top-ups. The Council accepted that was wrong, and it was responsible for invoicing Miss D. Mrs D should have signed a first-party top-up agreement not a third party, in December 2023.
23. In late February 2024, the CSW asked if Mrs D and Miss D wanted to move to a more affordable placement like Care Home 2. They did not as they liked Care Home 3. So, Miss D agreed to become a first-party top-up payer. The CSW said invoices will be: “posted to her [Miss D] as she is the invoice/correspondence address changed whilst on call)”.
24. In early April 2024, Miss D told the Council she had not received any invoices. The Council accepted it had wrongly sent those to Care Home 3 in error. It updated its system and added Miss D as the invoice to receive them by email.
25. In late April 2024, the ICB confirmed that it had agreed to fund Mrs D’s placement at Care Home 3 jointly with the Council.
26. Between June and October 2024, Miss D asked if she should pay the top-up at Care Home 3 since the Council and ICB funded it under Section 117. The Council said yes, because the cost of Care Home 3 was above the banded rate it would pay towards it.
27. In January 2025, Miss D said she had not received the invoice for the previous month. The Council noted the system was set up correctly in April 2024, and she should check her junk and deleted emails folders.

My findings

The suitability of the care home

28. I have reviewed the Council’s social care records.
29. In this case, the Council had to ensure the care homes that it offered Mrs D were available and could meet her assessed needs.
30. I consider the Council shared the right information about Mrs D’s needs with a range of care homes to decide if they could support her. That included the assessment on 5 December 2023. It was then for care homes to decide to accept Mrs D or not.
31. Care Homes 1, 2 and 3 all responded to the Council’s request for a placement positively. That meant that a bed was available for Mrs D.
32. I understand why Mrs D and Miss D refused Care Home 1. It was far away from Mrs D’s family. The Council correctly considered the family’s views and sought other homes.
33. Care Home 2 said it was open to accept Mrs D. It mostly supported older residents including people with mental health conditions, dementia, and learning and physical disabilities. Care Home 2 said it was available and could meet Mrs D’s needs. I have not seen any evidence to doubt Care Home 2 could safely support Mrs D.
34. The Council’s care records showed when the CSW presented the choice of Care Home’s 2 and 3, the family preferred Care Home 3. The Council did not record a reason for the family’s decision. The family had the power to choose a more expensive care home, if it met Mrs D’s needs. I do not consider the Council acted with fault when it decided Care Home’s 2 and 3 could meet Mrs D’s needs.
35. After Mrs D moved to Care Home 3, Miss D said Care Home 2 was not suitable because of the number of residents with dementia. I understand why Miss D felt that would have an impact on Mrs D. However, I do not consider that meant it was could not meet and safely support Mrs D’s assessed needs. Care Home 3 also supported older residents with dementia and physical disabilities.
36. Overall, I do not consider the Council acted with fault when it decided Care Home 2 could meet Mrs D’s needs.

The funding of the care home under Section 117

37. I have reviewed the Council and ICB’s care records.
38. Before Mrs D moved to Care Home 3, I consider the Council was clear with Mrs D and Miss D that it would fund the placement under Section 117, up to the banded rate. That was in line with the Code, CSSG and Regulations.
39. A few days after Mrs D moved to Care Home 3, the CSW said “I informed [Miss D] that the S117 will be reviewed soon and that if mum isn’t eligible of [sic] the placement isn’t solely a mental health placement then mum would be chargeable”.
40. When the Council and ICB jointly reviewed the Section 117 placement in April 2024, the ICB agreed to jointly fund it with the Council. That did not change that Mrs D had to pay a top-up. It simply meant the Council and NHS would jointly pay the banded rate. I consider the Council and ICB were clear while Mrs D was in Care Home 3 that she could move to a more affordable placement, like Care Home 2. But they preferred to remain at Care Home 3 and said it supported Mrs D’s wellbeing. That was their choice and not fault of the Council or ICB.
41. However, I agree the Council’s communication about Section 117 and first/third party top-ups was confusing. That was fault.
42. The Council should have set Mrs D up as first party top-up payer straight away, as the care was being funded by Section 117. Instead, they set Miss D up a third-party top-up payer, which was wrong and not in line with the Council’s ‘Care Home Funding’ guidance. The Council’s fault caused Miss D inconvenience and unnecessary stress trying to resolve the confusion.
43. In response to Miss D’s complaint, the Council has accepted that fault. It apologised to Miss D and offered £250 to remedy her justice. Additionally, in response to my enquiries, the Council has detailed learning from this complaint. It has reinforced training and guidance for staff around Section 117 and clarified the difference between Section 117 funding and top-up arrangements in its written communications to service users.
44. I consider the Council has appropriately remedied Miss D’s inconvenience and stress. Therefore, I will not take any further action against the Council.
45. Overall, regardless of how the Council funded Care Home 3 (under Section 117 or not), Mrs D and Miss D would have needed to pay a top-up. I do not consider the Council or ICB acted with fault by not paying the top-up at Care Home 3. The Council appropriately offered a genuine choice of care homes to Mrs D, including an affordable choice. That was in line with the Code, CSSG and Regulations.

The Council sharing invoices

46. I have reviewed the Council’s care record.
47. I consider the Council acted with fault between December 2023 and April 2024. It wrongly shared invoices with the care home instead of directly with Miss D. That caused Miss D confusion and uncertainty about how to pay the top-up charges at Care Home 3.
48. In response to Miss D’s complaint, the Council accepted its communication of invoices was poor. It wrongly shared them with Care Home 3 rather than Miss D. It apologised to Miss D for that fault. I consider the Council’s apologies appropriately remedies the injustice she has suffered.
49. In April 2024, the Council clearly noted it had changed its e-billing system to ensure it sent invoices directly to Miss D’s email address. However, Mrs D still had problems receiving regular invoices. There was much communication between Miss D and the Council where she was increasingly frustrated. I can understand this. However, I consider the Council corrected its mistake in April 2024 and cannot agree the Council was responsible for Miss D not receiving its emails after then.

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Decision

50. I have completed my investigation. I have not found fault with how the Council decided Care Home 2 could support Mrs D’s needs, or to charge a top-up at Care Home 3. But there was fault from the Council’s communication around the top-up and invoices, which caused an injustice to Miss D. Although Miss D does not agree with my decision, I am satisfied the Council has taken sufficient action to remedy her injustice.

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Investigator's decision on behalf of the Ombudsman