Date of decision: 24 February 2026
Summary
A daughter complained on behalf of her elderly mother about the Council’s and ICB’s handling of s117 aftercare funding for a care home placement after psychiatric hospital discharge.
The family chose a preferred care home requiring a top-up payment, but poor communication about operation of top-up arrangements and delayed or misdirected invoices caused the daughter significant stress and inconvenience.
What happened
In 2023, Mrs D, an elderly woman with mental health needs, lived at home with her adult daughter Miss D and received a s117‑funded package of care in that setting. In November 2023, she was admitted to a general hospital for physical health problems.
On 4 and 5 December 2023, the Council’s Community Support Worker (CSW) assessed Mrs D’s needs for discharge support; Miss D stated she could no longer care for her mother at home, so all parties agreed on a Discharge to Assess approach, via a care home pending further assessment, funded by the Council under s117 up to its evidenced banded rates being paid to care homes, with top‑ups required for costlier options, which Mrs D would need to pay.
The Council identified Care Home 1 (within the standard rates, but rejected by family for distance, so effectively for unsuitability); then Care Home 2 (within standard rates, and suitable for Mrs D’s needs including mental health) and Care Home 3 (requiring £225 weekly top‑up).
Mrs D and Miss D preferred and chose Care Home 3, which they had visited. On 12 December 2023, Mrs D moved to Care Home 3; Miss D accepted potential long‑term affordability issues for her mother but SHE (the daughter) later signed a third party top‑up agreement as the source of the top up payment.
On 21 December 2023, the CSW enquired about seeking a cheaper option, but Mrs D elected to stay, expressing concerns about Care Home 2’s dementia residents, though CSW still deemed it suitable; a week later, Mrs D was able to move to a cheaper room in Care Home 3, reducing the top‑up to £89 weekly.
In January and February 2024, Miss D queried Care Home 3’s chasing top‑up payments; the Council admitted error, confirming Mrs D could have been a first‑party top‑up payer, not needing a third party.
In late February 2024, CSW offered Care Home 2 again, but it was still declined, the client and family preferring Care Home 3 for wellbeing.
Miss D agreed to swap to a first party top‑up, with CSW promising invoices posted to her. [We think that this is an error for Mrs D because Miss D obviously is not the client and cannot be seen as a first party to the top up.] In early April 2024, Miss D reported no invoices had been received by her or her mother, implicitly; the Council again admitted wrongly sending them directly to Care Home 3.
In late April 2024, the ICB confirmed joint s117 funding of Care Home 3 with the Council, long after she had moved in. This led the daughter to query whether there was now any NEED for a top‑up obligation under joint s117, no doubt thinking that the ICB would be contributing the missing cost she or her mother was supposedly covering; the Council confirmed the top up concept was indeed still applicable because it was above its banded rate, and the ICB’s decision made no difference to that.
In January 2025, Miss D had still not received the prior month’s invoice.
What was found
The Council properly assessed and offered suitable care homes within banded rates, including Care Home 2 which could safely meet Mrs D’s needs despite family concerns over dementia residents there, in line with s117 aftercare duties, Care Act guidance, and choice of accommodation regulations; no fault was found in requiring a top‑up for the preferred Care Home 3 or in the concept of joint Council‑ICB funding up to the banded rate.
However, the Council was at fault in its communications on s117 top‑up mechanics, wrongly setting up Miss D as a third party payer initially (contrary to its own guidance as well), whereas it should have set Mrs D up as a first party top-up payer straight away.
The Council mishandled invoices by sending them to the care home until April 2024 instead of directly to Miss D, causing her confusion, uncertainty, inconvenience, stress, anxiety, frustration, and business impact. These faults breached good administrative practice.
The Council remedied with apologies, £250 payment to Miss D, system corrections, staff guidance reinforcement on s117 and top‑ups, training and communications.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman understood why Mrs D and Miss D refused Care Home 1 as it was far away from Mrs D’s family but did not consider that the Council acted with fault when it decided that Care Homes 2 and 3 could meet Mrs D’s needs. That’s an endorsement of a position on unsuitability, in legal terms, of the first home.
Miss D said Care Home 2 was not suitable because of the number of patients with dementia. The Ombudsman understood why Miss D felt that would have an impact on Mrs D, but unsurprisingly, given the reality in the sector, did not consider that meant it could not meet and safely support Mrs D’s assessed needs. Care Home 3 also supported older residents with dementia and physical disabilities.
We suggest that if a placement at Care Home 2 would not have been effective in reducing the risk of re-admission to hospital, (perhaps because of the stress of being around so many other people with dementia), then it would not have been a suitable option for a s117 aftercare package.
In that scenario Care Home 3 would have been the only available option, and if that were the case, Mrs D (or Miss D) could not have been required to pay towards it. It would have been helpful if the report had explored this aspect in more detail.
The decision refers to the Mental Health Act 1983 Code of Practice (which is statutory guidance.) This states that Section 117 aftercare can include accommodation. The Care Act and Aftercare regulations (on choice of accommodation and aftercare) 2014 specifically extends top up architecture so s117 patients, providing for essential differences, such as the fact that the comparison is with the council’s standard rates, rather than the individualised personal budget under the Care Act – for the simple reason that one does not GET a personal budget, in the same sense, for s117 aftercare.
The reason that one can be a first party payer is that one is not being charged for one’s s117 aftercare – and thus there is no risk that the concept of tariff income will lead to a duplicate charge for something that has been subsumed within the Council’s contract – once on the basis of deemed income from capital, and once through a top up from one’s very same own capital resources, whilst still above £14250.
Section 117 aftercare itself cannot be charged for, where social care is properly treated as aftercare it sits outside the standard charging framework. When additional payments are sought, the council must ensure it does not, in substance, treat aftercare as if it were simply ordinary chargeable provision.
At the same time, charging law stresses that it is the service user’s means alone that are relevant, and that where a council constructs a top‑up or “additional payment” mechanism, layered on top of council‑funded care, those arrangements must be framed so as to avoid double‑recovery, unlawful reliance on relatives’ income as if it were the client’s, or confusing mixtures of first party and third party liability that obscure who legally owes what.
In this case the Ombudsman endorses the Council’s approach to requiring a top‑up for a care home above its usual rate and accepts that the top‑up was “legitimately required”, but without examining the Council’s original banded rates were themselves arbitrarily low or in fact a proper reflection of what was required, to cover needs for the anticipated number of s117 clients needing aftercare; the combination of banded rates, aftercare status and the use of top‑ups had been properly worked through, rather than focusing predominantly on invoice routing and terminology.
The Ombudsman here was satisfied with relatively high‑level explanations that the family chose a more expensive home and that a top‑up therefore properly applied, but did not probe whether the Council ever gave Miss D a reasoned, written explanation that grappled with the specific legal questions she was repeatedly raising about joint s117 funding and top‑up liability, as distinct from general statements about banded rates. Community care law would frame that as a question of procedural fairness and adequacy of reasons for sufficiency of the joint commissioning proposal, in a public law sense, not simply as a matter of “poor communication”, and would ask whether the absence of a clear, early, written explanation about the legal basis for the top‑up and the correct payer contributed materially to the protracted confusion, thereby calling for a more robust remedy than modest distress‑based compensation and internal training.
From a practical standpoint, the broader implication is that councils need to treat these situations not just as customer‑service problems, but as points where public law duties about assessment, planning, non‑charging of aftercare, and rational explanation all converge. That means documenting the legal reasoning for any top‑up in Section 117 cases, including who can lawfully be the payer; and issuing clear, accessible written reasons at the time decisions are taken, rather than relying on later reassurance that systems have been corrected. In turn, people in Miss D’s position should be encouraged to insist on proper assessment documentation for their s117 needs, leading to a written explanation that sets out the legal basis for any proposed top‑up for wants as opposed to needs, and for any expectation that they, rather than their relative, could or should be the payer, and to challenge decisions that appear to conflate non‑chargeable aftercare with ordinary chargeable social care.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Leicestershire County Council (24 021 800) 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.
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