Summary: We investigated a complaint about the care provided to Mr B by Kirklees Council and Tolson Grange Care Home. We also investigated the role of the NHS West Yorkshire Integrated Care Board who provided funding for Mr B’s placement. We found no fault with the actions of any of the organisations.

The complaint

1. Mrs A complains about Kirklees Council (the Council). She complains it failed to support her when her husband, Mr B, was detained under the Mental Health Act (MHA) in January 2019. Specifically, she complains it charged top up fees for his stay at Tolson Grange Care Home, despite Mr B receiving S117 aftercare funding. She says the Council did not explain they could have chosen a cheaper alternative which they would not pay for. Mrs A feels the Council should have explained everything to her and allowed her time to consider it before moving Mr B to the home.
2. Mrs A also complains about Tolson Grange Care Home. Mrs A says it failed to make reasonable adjustments to allow her to visit Mr B in a comfortable and dignified way during pandemic-related visiting restrictions. This meant she lost out on contact with Mr B which made a difficult time of change worse. She also complains when Mr B moved to another care home, the new home did not receive any transfer paperwork which caused unnecessary delays.
3. Mrs A and Mr B paid the top up fees from their savings which affects any future care they may need. Mrs A was distressed when her husband was detained and explained the Council did not allow her time to process what was going on. She felt alone and without support.
4. Mrs A wants answers so she can move on. She would like service improvements to ensure no other family has to go through the same experience and be paid back the top up fees.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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)
7. 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 acts to stop the same mistakes happening again.
8. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(a), as amended)

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How I considered this complaint

10. I considered the complaint Mrs A made to the Ombudsmen and information she provided on the telephone. I also considered the information the Council and the Care Home provided in response to my enquiries. I also made enquiries to the Integrated Care Board (ICB) because Mr B received S117 aftercare funding.
11. I shared a confidential draft with Mrs A, the Council, Tolson Grange Care Home and the ICB to explain my provisional findings and invited their comments on them.

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What I found

Background

12. In January 2019 Mr B was detained under Section 3 of the Mental Health Act (MHA). He moved to Tolson Grange Care Home in March 2019.
13. S117 of the Mental Health Act (1983) (MHA) imposes a duty on health and social services to meet the health and or social care needs arising from, or related to, the persons mental disorder. This is known as S117 aftercare. You are entitled to section 117 aftercare if you have been in hospital under section 3 of the Mental Health Act 1983.
14. Section 33.7 of the Mental Health Act Code of Practice 2015 states Councils and CCGs (Clinical Commissioning Group, since replaced by ICB) should “maintain a record of people for whom they provide or commission aftercare and what aftercare services are provided.”
15. The ICB shares a statutory duty with the Council to provide, or arrange, S117 aftercare services for eligible service users in the area. During this investigation, the ICB told me it holds a register of all patients it commissions directly and for those it financially contributes to through the Council.
16. Mr B became eligible for S117 funding from January 2019 as he was detained under Section 3 of the MHA.

Complaint about top up fees

17. Mrs A complains the Council charged top up fees for his stay at Tolson Grange Care Home, despite Mr B receiving S117 aftercare funding. She says the Council did not explain she could have chosen a cheaper alternative for which they would not pay.
18. After his detention, professionals decided Mr B needed to go to a care home to meet his needs. In a multidisciplinary team meeting on 15 February, a social worker gave Mrs A a list of care homes in the local area which it could provide funding for. Mrs A told professionals she would only agree to Mr B going into a care home after she had visited them. The notes show the social worker explained to Mrs A about S117 aftercare funding, and top-up fees should Mrs A choose a care home which was more expensive than those on the list.
19. Mrs A found Tolson Grange herself. The manager told her the cost was higher than the Council would pay for. A note from 22 February shows the care home manager spoke to the Council and agreed to reduce the cost of the top up for the family. Later the same day, Mrs A told professionals she visited Tolson Grange and wanted Mr B to go there as she felt this would best meet his needs. Mrs A knew a bed was immediately available and there was a top up fee for her to pay.
20. On 5 March 2019, a social worker spoke to Mrs A. The note says Mrs A told them she knew the cost of Tolson Grange. The social worker explained Mr B would receive S117 aftercare funding so it would pay most of the fees, but as she had chosen a more expensive home, she would need to pay the top up fee. The social worker told Mrs A the manager of Tolson Grange had agreed to lower the cost to £200 a week, from £220. Mrs A confirmed Mr B received £1000 a month in pensions, so this could cover the top up fee.
21. I cannot see Mrs A mention she had concerns about the top up fees until she made her formal complaint to the Council in November 2022.
22. There is no maximum amount S117 aftercare can fund, but it is not unlimited. The amount depends on the person’s needs, and not the budget. If a Council can find more than one placement which can fully meet the person’s needs, it is entitled to take cost into account and not, on its own, fully fund a more expensive alternative.
23. The Council provided Mrs A with a list of homes in the local area which could meet the needs of Mr B, which it would pay for in full. Mrs A chose a different home and told the Council herself she knew they would need to pay for this choice. The notes show th Council explained to Mrs A it would not cover the top up fee and discussed Mr B’s pension with her. There is no mention in any of the notes Mrs A worried about the cost, only that she felt Tolson Grange was the best choice for Mr B.
24. I found no fault with the actions of the Council.

Complaints about the Care Home

25. Mrs A also complains about the Care Home. She says it failed to make adjustments to allow her to visit Mr B in a comfortable and dignified way when it had COVID-19 pandemic visiting restrictions in place. She also complains when Mr B left the Care Home, the new care home did not receive any transfer paperwork and this caused unnecessary delays.

Visiting restrictions

26. Tolson Grange put visiting restrictions in place from May 2020. At first it only allowed window and drive-by visits and then introduced outdoor visits. As the restrictions stayed in place, it built a visiting pod which was on the bottom floor at the back of the building, but this could only be accessed by a set of 16 stairs.
27. Mrs A walks with a cane and uses a mobility scooter. She has explained she could not get to the visiting pod as it was only accessible by stairs. Mrs A asked if she could use the lift inside the building to access the pod, but because of the restrictions on people entering the building, staff could not allow her to do this.
28. Government guidance ‘Care homes: Visiting restrictions during the covid-19 pandemic’ said “family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life.” It explains “the decision on whether or not to allow visitors is an operational decision and therefore ultimately for the provider and managers of each individual setting to make.” It added “alternatives to in-person visiting should be explored, including the use of telephones or video, or the use of plastic or glass barriers between residents and visitors.”
29. I have reviewed the Care Home’s policy and can see it was in line with government guidance and it made changes when the government advice changed as the pandemic evolved.
30. Mrs A wanted to enter Tolson Grange so she could use the lift to access the visiting pod. Staff could not allow her to do this because they were not allowing any visitors into the building, as advised by government policy. Staff knew this upset Mrs A and offered to arrange a window visit. Staff also told Mrs A telephone and video calls were available whenever she wanted to arrange them.
31. I understand it was distressing for Mrs A but she was able to continue with the window and outdoor visits as before the pod was built. Staff tried to help her, but we would not expect them to put staff and other residents at risk to do so. I am satisfied Tolson Grange were following government advice. I found no fault.

Transfer paperwork

32. Mrs A complains Tolson Grange did not send Mr B’s transfer paperwork to his new home when he moved.
33. Mr B’s records show his move from Tolson Grange to a new care home was brought forward because staff could not manage his behaviour. I have seen evidence Tolson Grange sent his information to his new home for them to assess if they could meet his needs. The new home completed their assessment and confirmed it would take Mr B the next day.
34. Mr B moved to his new care home with his medication charts and prescribed medication. The new home accepted the documents and there is no mention of anything they needed being missing. There is no evidence to support Mrs A’s complaint and I therefore find no fault in the Care Home’s actions.

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Final decision

35. I do not uphold this complaint. I have found no fault with any of the organisations.

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Investigator's decision on behalf of the Ombudsman