Summary: There was no fault by the Council when it asked Mr X to pay his care home charges and when it found he was not eligible for funding under the Mental Health Act. The Council set out the care charges when he moved to the care home and how these may be deferred. The Council also held recovery of the charges while Mr X’s son challenged the outstanding amount.

The complaint

1. Mr B complains that the Council wrongly charged his late father, Mr X, residential care fees.
2. Mr B says the Council’s shortcomings have caused him distress and frustration, and he has had to challenge the Council’s demands numerous times.

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The Ombudsman’s role and powers

3. We may investigate a complaint on behalf of someone who has died or 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)
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. 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(1), as amended)

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What I have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Mr B complains about events from 2021 and 2022 and so his complaint to the Ombudsman is late. However, Mr X was pursuing his complaints with the Integrated Care Board and the Parliamentary and Health Service Ombudsman. I have decided that there were good reasons why he did not come to the Local Government and Social Care Ombudsman sooner.
8. Mr B is the administrator of his late father’s estate and so we have accepted him as a suitable representative for Mr X.

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How I considered this complaint

9. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
10. Mr B and the Council 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

The law and guidance

Mental capacity and Best Interests decisions

11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
12. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
13. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Detention in hospital under the Mental Health Act

14. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
15. A person can be detained in hospital under section 2 of the Act for assessment and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet.
16. A person can be detained under section 3 of the Act for treatment and kept in hospital for up to six months. The detention under section 3 can be renewed for another six months.
17. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet. People released from hospital detention under section 3 will not have to pay for any aftercare they need as a result of the condition for which they were detained. This is known as section 117 aftercare.

Charging for residential care

18. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them.
19. A person can choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up’.
20. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.

What happened

21. This is a summary of the key events relevant to my investigation. It is not a complete account of everything that happened.
22. In October 2021, Mr X was admitted to hospital. He had been neglecting his personal care, and he was confused and paranoid. The Council completed a mental capacity assessment to see if Mr X could decide whether he wanted to go home or to residential care. The Council found that Mr X had capacity to make that decision and that he could understand that home care workers would visit him throughout the day to give care and support.
23. Mr X returned home in November but within a few days, he was again admitted to hospital. He was very low, he was not eating or drinking, and he had pressed his emergency alarm.
24. Towards the end of November, two doctors completed a mental health assessment. They decided that Mr X should stay in hospital to continue treatment. The Council’s case notes say that it spoke to the Approved Mental Health Professional. This is a person approved by the Council to respond to requests for a mental health assessment to decide whether someone should be detained under the Mental Health Act.
25. The Approved Mental Health Professional explained that Mr X had not been detained under the Mental Health Act at that point. They advised that Mr X still needed treatment, that he had some delusions about his ability to swallow food and drink, and that he was preoccupied with his physical heath.
26. In December, Mr X’s mental health had deteriorated and he was not complying with treatment. Mr X was detained for assessment under section 2 of the Mental Health Act. The legal section 2 detention was due to end on 11 January 2022 (28 days after it had been applied).
27. The Council contacted the hospital at that time. It learnt that Mr X had COVID-19 which meant he could not be moved from the psychiatric ward. The hospital told the Council that in any case, Mr X was not medically well enough to go home.
28. The ward notes from that time say that Mr X had less suicidal thoughts and the paranoia was less prominent. They say that Mr X understood that his section detention had ended.
29. At the start of February, there was a meeting of the professionals involved in Mr X’s care. This noted that Mr X was responding well to treatment, he was eating again, and had no behavioural issues. The meeting notes acknowledge that Mr X had been detained under section 2 of the Mental Health Act, but when that expired, he stayed at the hospital without a further section.
30. The Council met with Mr X and found that he remembered the social worker and was able to talk about his health and care, and he had good communication. Mr X said he needed to decide whether he went home or moved to a care home.
31. Towards the end of February, the Council completed a mental capacity assessment to see if Mr X had the capacity to decide where he should live. The Council concluded that Mr X did not have capacity to decide this. It said he could not remember the risks of living without care in place, and could not put the information together to make a decision.
32. The Council met with Mr X’s family, including Mr B to make a ‘best interests’ decision about discharging Mr X from hospital. The notes of the meeting set out the various points of discussion and it was decided that Mr X should move to a residential care home.
33. Mr B was supporting Mr X with his finances and the Council sent Mr B information about charging for residential care. In March, he applied for Continuing Health Care funding from the NHS to cover Mr X’s care charges. The application was refused and Mr B appealed, but his appeals and further applications were unsuccessful. At this time he also asked the Council about section 117 funding. The Council told him that his father would not be eligible for this because he had been detained under section 2 for assessment and not under section 3 for treatment. The Council advised Mr B to contact the hospital if he had any questions about the section.
34. Mr X was discharged from the hospital to stay in a care home. This was temporary initially, and then made permanent.
35. The Council completed a financial assessment and decided that Mr B would have to pay his full care home fees because he had savings and owned his own home. The Council entered into an agreement with Mr B and Mr X. This set out that the Council would pay the care fees to the home, and Mr X would pay the Council. The Council included information about the deferred payment scheme which would allow Mr B to put off selling his home in his lifetime and instead it would be sold on his death, and the care home fees paid to the Council from the proceeds.
36. Mr B would also need to pay £100 in top up fees because the home cost more than the rate the Council would normally pay. Mr B and the Council signed the agreement.
37. The Council’s case notes say that it also explained to Mr X in a telephone call that the Council was paying the care home fees but Mr X would need to pay the Council for this, either by completing the deferred payment agreement or by paying out of his savings and income.
38. Mr B did not enter into the deferred payment agreement. The Council continued to pay the care home fees and raised invoices for Mr B’s contribution.
39. Mr X sadly died in September 2024. The Council asked Mr B to pay the care home fees to the Council from his late father’s estate.
40. Mr B complained to the integrated health board and later to the Parliamentary and Health Service Ombudsman that Mr X was entitled to section 117 funding and should have been treated as a patient detained under section 3 of the Mental Health Act. Mr B pointed out that Mr X was never able to leave the hospital even if escorted by Mr B, and that he did not have the capacity to agree to being a voluntary patient at the hospital. The Parliamentary and Health Service Ombudsman decided that there was no fault when Mr X continued to stay at the hospital as a voluntary patient on the ward, and did not move him to be detained under section 3 for treatment.
41. Mr X complained to the Council. The Council said that the decision not to detain Mr B under section 3, was a clinical decision, and it was not involved in this. The hospital could have requested the Council make a section 3 assessment and then its Approved Mental Health Professional would have been involved, but it did not.

Was there fault by the Council causing an injustice to Mr B and the late Mr X?

42. This was a very difficult time for the whole family and I can understand that Mr B was very worried about his father.
43. The Council had no role in deciding whether Mr X should be detained under section 3 of the Mental Health Act to be treated. The decision not to do this, and that Mr X could stay at the hospital as a voluntary patient was made by the hospital. This means that there was no fault by the Council when it did not apply section 117 funding to cover Mr X’s care costs when he moved to the care home.
44. There was no fault when the Council found that Mr X could not decide where he should live when he was discharged from hospital, nor when it made a ‘best interests’ decision that he should move to a care home. It properly assessed his capacity to make these decisions, and consulted with the family to decide that Mr X should move to the care home.
45. The Council was clear with Mr B about the care fees payable by him and by his father and the opportunity to defer these payments until the eventual sale of Mr X’s house. It also held recovery of the outstanding amount so that Mr B could pursue NHS funding and his complaints with the Ombudsmen.

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Decision

46. I find no fault.

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Investigator's decision on behalf of the Ombudsman