Summary: Mr X’s Solicitor says the Council is at fault for charging a third-party top-up fee for his care. The Council should not have charged a top-up before it had a top-up agreement with his daughter. The Council therefore needs to refund the top-up she paid up to 4 March 2015.

The complaint

1. A Solicitor has made the complaint for Mr X and Ms Y. They say the Council is at fault for charging a top-up fee for his care since November 2014.

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The Ombudsman’s role and powers

2. 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)
3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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

5. As part of my investigation I considered the information provided by Mr X’s Solicitor. I also considered information and evidence supplied by the Council. I have invited comments on a draft of this statement for me to consider before making my final decision.

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What I found

Relevant Legislation and guidance

6. Section 3 of the Mental Health Act 1983 allows people to be detained in hospital for treatment necessary for their health, safety or to protect other people. Before someone is discharged, a social care assessment should take place to see if the person has 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 because of the condition for which they were detained. This is known as section 117 aftercare. The free aftercare services are limited to those:
• arising from or related to the mental disorder; and
• reducing the risk of a deterioration of the person’s mental condition (i.e. to prevent re-admission).
7. Section 117 aftercare services can include accommodation. Since the introduction of the Care Act in April 2015, people needing accommodation under section 117 are allowed choice over their accommodation but may have to pay a top-up if their preferred accommodation costs more than accommodation available under their personal budget. There was no similar right to choice over accommodation provided under section 117 before April 2015.
8. Local Authority Circular (2004)20 provided guidance to councils on:
• National Assistance Act 1948 (Choice of Accommodation) Directions 1992; and
• National Assistance (Residential Accommodations) (Additional Payments and Assessment of Resources) (Amendment) (England) Regulations 2001.
9. This guidance related to people provided with accommodation under section 21 of the National Assistance Act 1948. They had the right to exercise reasonable choice over their accommodation. However, if someone chose accommodation more expensive than the council’s ‘usual costs’, a third-party would have to agree to pay a top-up before the person could move to their preferred accommodation. The guidance said councils should make clear to residents and third parties, in writing, the basis on which arrangements are to be made when they seek to exercise their right to move to more expensive accommodation. It should be clear from the outset that:
• failure to keep up top-up payments may result in the resident having to move to other accommodation unless, after an assessment of need, it is shown that assessed needs can only be met in the current accommodation;
• a rise in the accommodation’s fees will not automatically be shared equally between the council and third party.

Background

10. Mr X has Lewy body dementia. He also has mobility needs following a fall. His daughter, Ms Y, holds Lasting Power of Attorney for property and financial affairs.
11. In February 2014 Mr X went to hospital following a decline in his mental health.
12. On 18 March Mr X was detained under section 3 of the MHA. He later transferred to a psychiatric ward for treatment. It was considered he should not return home and that his needs would best be met in a residential care home for elderly people with a mental illness that specialised in dementia.
13. Mr X’s case was referred to the Council for help finding a suitable placement under section 117. Its usual cost for such accommodation in Bromley was £570 per week.
14. On 9 July Mr X’s Social Worker told Ms Y about two care homes that had vacancies (which accepted its usual rate). He said the family should visit them before the homes would assess Mr X. He said to feedback, so he could arrange for the chosen home to assess him. Ms Y said she would try and do so at the weekend. She also suggested five other homes which may be suitable for Mr X.
15. The Social Worker says Ms Y visited the two homes but said neither of them would suit her father. He did not record this at the time.
16. The Social Worker emailed Ms Y on 17 July advising that only one of her suggestions, Home Q, had a vacancy. He noted Home Q charged £950 a week, which was more than the Council would pay (up to £570). However, if the difference (£380) could be met as a top-up, he said he would ask Home Q to assess her father. On 19 July Ms Y said she was happy for an assessment to take place despite the cost.
17. On 24 July Home Q told the Social Worker it could accept Mr X. However, after visiting it on 27 July, Ms Y said it was not the best place for her father”, not even as a temporary measure, as she found it “claustrophobic and grim. She said she would consider a placement outside Bromley. They agreed to look for alternative placements.
18. On 21 August the Social Worker e-mailed Home R, a new care home which Ms Y had expressed an interest in as it was close to her home. He asked if it would assess Mr X. Home R told the Social Worker it would open in mid-October but could show Ms Y a selection of rooms costing from £940 a week.
19. In an email to the Social Worker on 3 September, Ms Y said she was not happy for Mr X to live at Home P, which she understood cost close to £570 a week, as it was “shabby and claustrophobic”, although it had a friendly feel. She said she had reserved a room at Home R from 1 November, although it was “eye-wateringly expensive”. She said it was “as good as it’s going to get – reasonable privacy plus some freedom of movement and, importantly, local to me”. She said she understood the Council would pay less for a placement outside Bromley. Ms Y asked if her father could go to Home P to see if he settled but, if not, he could move to Home R. The Council has no record of the Social Worker responding to Ms Y’s e-mail. It says Home P “may” not have been appropriate because of investigations into safeguarding concerns.
20. On 31 October Home R told the Council Ms Y had reserved a room which would cost £975 a week. The Social Worker forwarded the e-mail to Ms Y, saying the Council would pay £440.30 a week, so she would have to pay £534.70 a week.
21. Mr X moved to Home R on 13 November. This was under section 17 of the MHA, which provides for a clinician to grant leave of absence from hospital, although they remain subject to section 3. Since then his placement at Home R has been part-funded by payments made by the Council and top-up fees from Ms Y.
22. On 13 January 2015 Mr X was discharged from section 3 of the MHA.
23. Ms Y signed an individual service agreement for her father’s placement on 4 March. It says the weekly cost was £975, with Ms Y paying £534.70. Ms Y also signed a top-up agreement confirming:
• “It has been explained to me that as the fees at the Home are higher than the amount the Council … would normally expect to pay to meet my assessed needs, I can still have care arranged for me in the Home providing a third party is willing to pay the difference in costs ….”
• “[We] understand that if, for any reason payment of this extra cost ceases or falls below the required level, the Council is not required to maintain the Client in this more expensive accommodation, and an alternative place will be sought in less expensive accommodation providing that the Service can meet the needs of the Client.”
24. Mr X remains at Home R at a current cost of £1075.09 per week. The Council pays £485.53 and Ms Y pays a top-up of £589.57.
25. In 2018 Ms Y approached a Solicitor about the cost of Mr X’s care. The Solicitor complained to the Council that it had:

• unlawfully applied a top-up fee throughout Mr X’s stay at Home R as it had not found a suitable placement within his personal budget;
• did not tell Ms Y placing Mr X outside the borough would reduce the amount of its contribution; and
• set an arbitrary ceiling on the care costs for Mr X.

26. For these reasons the Solicitor said the Council should refund the top-up fees paid by Ms Y and review Mr X’s care plan with a view to meeting the full cost of his care at Home R.
27. When the Council replied in September 2018, it did not accept it had unlawfully applied top-up fees and did not agree to repay the top-up fees paid by Ms Y. This was because:

• it had identified two care homes in July 2014 that were available and within Mr X’s budget but there is no evidence that Ms Y visited them and asked for an assessment to take place;
• Ms Y rejected an offer of a placement at Home Q; and
• Ms Y accepted a placement at Home R despite not having completed an exhaustive search of homes in Bromley.

28. Ms Y remained unhappy and her Solicitor complained to the Ombudsman in January 2019.
29. In July 2019 Ms Y told the Council she could no longer afford to pay a top-up for her father’s placement at Home R.
30. The Council identified an affordable placement in September. But the home decided it could not accept Mr X as he: does not sleep in bed; is at high risk of pressure sores; is non-compliant with personal care; and can display verbal aggression. It said he would not be a suitable match with other residents.
31. The Council identified another home in Croydon. However, after contacting Home R in October, it decided not to assess Mr Y.

Is there evidence of fault by the Council which caused injustice?

32. We have exercised the Ombudsman’s discretion to investigate this complaint even though the matters complained about date back to 2014. This is because the claimed injustice (the top-up) is ongoing, the Council completed its own investigation into the complaint in 2018 and this showed evidence still exists to enable us to make a decision on the complaint.
33. Before April 2015 there was no right to choice over accommodation provided under section 117 of the MHA. The Council exercised its discretion to allow Mr X, via his daughter, to have choice over his section 117 accommodation. In doing so, it appears to have followed the guidance in place for placements made under Section 21 of the National Assistance Act 1948. As Mr X continued to be subject to section 3 of the MHA until 13 January 2015, there was no basis to charge a top-up until then. The Council was therefore at fault for charging a top-up before 13 January 2015. The Council did not ask Ms Y to sign a top-up agreement until March 2015. It has always been the case that a top-up agreement must be based on a formal written agreement. There was therefore no basis to charge a top-up before 4 March 2015. The Council needs to refund the top-up charged before 4 March 2015.
34. The Council did not record Ms Y’s objections to the two care homes she looked at in July 2014. It appears she did not like them but that does not mean they would not have been able to meet her father’s care needs. The Council’s records from 2014 do not identify the charges for the two care homes. However, on balance, it seems likely their charges were within the Council’s usual costs.
35. It is clear from the Council’s records that cost was not the key factor for Ms Y and she was prepared to pay more for a home she liked. This is also reflected in the fact she waited three years before raising concerns about the top-up. She knew cheaper care homes were available in 2014 and the Council’s usual cost for a placement outside Bromley was less than for a placement in Bromley. Nevertheless, she preferred for her father to live in a care home close to her which she liked.
36. Although Ms Y did not particularly like Home P, she asked if her father could be placed there to see if he settled. If not, he would move to Home R, despite the fact it was “eye-wateringly expensive”. The Council failed to record any further discussion with Ms Y about Home P to explain why it did not comply with her request. That was also fault by the Council. However, it does not provide enough grounds for me to say the Council should not have asked Ms Y to pay a top-up for the placement at Home R.

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Agreed action

37. I recommended the Council within four weeks:
• refunds the top-up Ms Y has paid up to 4 March 2015.

The Council has agreed to do this.

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Final decision

38. I have completed my investigation, as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman