Decision Date: 03 Jul 2024
Summary:
Ms F’s mother was wrongly charged a contribution to her residential care fees for 19 years when she was entitled to free mental health aftercare. The restitutionary refund was offered without any breakdown or interest clarity. Ms F wanted £2,560.80 in solicitor’s fees, on which it should not have been necessary to spend money, in order to get the mother’s rights upheld.
What happened –
Mrs B was placed in a residential care home in Kent County Council’s area in 1992 by a neighbouring health authority (Health Authority Y) after discharge from a mental hospital. Mrs B’s care was funded under the previous social security benefits arrangements.
[NB, that was how everybody got accommodated in those days; s117 aftercare was not thought to cover the accommodation for anyone, in those days, if a person could choose to self-fund from benefits, which were higher than a pension, for younger adults – and which assumed an appointee or capacity to make the contract. The self-funding elsewhere than where she hailed from, meant that she became Kent’s responsibility.]
Following the implementation of the Health and Social Care Act 2001, funding for Mrs B’s placement was transferred to the Council in April 2002. [Access to Preserved Rights benefits ceased at that point and councils were made statutorily liable for the ongoing arrangements in place: a statutory novation, in terms of contract law.]
The Council assessed Mrs B’s finances and started charging her a contribution to the costs of her residential care because Mrs B’s section 117 status was not considered relevant during the assessment.
Ms F says Mrs B’s pension was paid to the care home, leaving her with a personal allowance.
Mrs B moved to a different care home in the Council’s area in 2021. At that point, the Council noted that she was entitled to section 117 aftercare funding. The Council re-assessed Mrs B’s finances, backdating a nil contribution from April 2018.
Ms F became aware of the matter and wrote to the Council. In July 2022 the Council told Ms F that it had been difficult to establish a start date for the section 117 funding as there was no paperwork regarding a section 3 admission, but it was very likely that Mrs B would have been eligible for many years. However, the Council’s formal position was that Mrs B had never made any contributions towards her care and had received her pension directly.
Ms F became Mrs B’s financial affairs Deputy in March 2023 and appointed a solicitor to help her establish the amounts contributed by Mrs B and the information she needed to enable her to make a complaint.
She incurred solicitors’ invoices totalling £2,560.80.
Ms F made a formal complaint to the Council in August 2023 that section 117 aftercare funding was not in place from 1992 to 2021 and that no information about Mrs B’s funding had been provided, despite repeated requests.
Having had no response whatsoever, Ms F escalated the complaint to the Ombudsman in November 2023. The Ombudsman was told that the council had been seeking legal advice.
The Council ultimately accepted there was fault as it had not taken into account that Mrs B was entitled to free section 117 aftercare when it had determined the contribution she should make to her residential care fees since April 2002. [Before that point, the council was not directly liable, it is suggested, but it should have been funding the placement.]
The Council refunded Mrs B with £114,721.36 in January 2024. The Council noted that funding of the Section 117 aftercare was the joint responsibility of the placing authorities, i.e. Council X and the former Health Authority Y.
Ms F remained dissatisfied as the Council had not explained how the refund had been calculated and whether it had applied interest.
What was found
In between 2002 to 2008, we think that the Council had agreed with the care home to take the charges element of the fee directly from Mrs B and the council had paid the rest of the overall placement fee.
[That is not and was not lawful even then, unless everyone agreed, even then under the National Health Service and Community Care Act, let alone a s117 client entitled to free aftercare].
It also submitted Mrs B’s financial assessments from 2008-2021, showing her assessed client contribution for each financial year. The Council had used these records to calculate the refund to Mrs B.
[That indicates that they were levying the charge but paying the care home the charge plus the shortfall, which was correct in legal terms, were it not for the woman’s s117 status.]
The Council also agreed to refund Mrs B with an interest payment which it had calculated in total to be £17,368.50, on top of what it had already paid.
The Council did not consider the solicitor’s fees should be reimbursed, as Ms F’s concerns could be addressed via the Council’s complaints process and Ombudsman, free of charge.
Kent offered to pay Mrs B £700 to remedy the distress caused by the error and the length of time it took the Council to rectify the problem. It also offered to pay Ms F £250 to recognise the time and trouble taken to resolve the complaint.
The Council said it had recently reviewed and updated its procedures in relation to Section 117 aftercare, to prevent people being charged in error.
The LGSCO said that there may be circumstances where it is reasonable for a complainant to have engaged legal help but that they should not need a solicitor to help them make a complaint to the Ombudsman or council, and that the amount paid was in line with what was reasonable.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
We think that the ombudsman deliberately avoids writing up headline figures like this in order to support a collaborative relationship with councils. We do not mean to suggest that that is improper. Nobody wants to set a bandwagon rolling regarding people who have been FUNDED all this time to be paying for their care. People on s117 still get benefits, because the government has never sorted that aspect of the way in which the benefit system works with the social care charging system, out. When a person in that position dies intestate, it is their next of kin who stands to benefit from the public money thereby wasted.
We know nothing about the age of the lady in question but she has been in care for over 40 years. We can’t guess what benefits she may have been entitled to during that period of what should have been free care.
The arrogance of the council in ignoring the correspondence from the daughter is what makes us recoil from the thought of the number of people affected in this way.
In our view, it is an appalling approach to governance and a public sector ethic, and belied by the very facts of this complaint, to suggest that one does not need a legally astute source of support for this kind of matter. It amounts to saying that the Council is allowed to decide it’s in the wrong but that it’s ok to just wait and see if it gets away with grinding down the victim.
The reader is additionally not able to tell how the calculation of the primary sum or the interest was made.
We think that the interest has not been worked out correctly, for what it’s worth, for reasons suggested here.
Given that the amount of money owing grew gradually bigger, but that the whole sum was not owing for the same period of time, there’s a principle that 8%pa (the High Court rate for what would have been an action for an ultra vires charge, one that would have meant a certain win, if High Court Proceedings had only been issued) would have been ordered, on
- the whole sum for half the period,
- half the sum for the whole period,
- or at half that rate on the whole sum for the whole period.
Any which way one works that out, it’s more than £17k.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Kent County Council report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!