Council to pay £18k after woman was wrongly charged contribution to care fees when she was entitled to free mental health aftercare

Kent County Council has been told to pay more than £18,000 after the Local Government and Social Care Ombudsman (LGSCO) found it at fault for not providing an elderly woman with free section 117 aftercare.

The complainant told the LGSCO that her mother, Mrs B, was wrongly charged a contribution to her residential care fees from 2002 to 2021 when she was entitled to free mental health aftercare.

She also complained that the council had not explained how it had calculated the refund or whether it had included interest.

Under section 117 of the Mental Health Act 1983, councils and NHS commissioners have a joint duty to provide or arrange free aftercare for people who have been detained under certain sections of the Act.

In its report, the Ombudsman said Mrs B was detained under section 3 of the Mental Health Act in the 1980s in a different local authority (Council X) area.

She was placed in a residential care home in Kent County Council’s area in 1992 by a neighbouring health authority (Health Authority Y). Mrs B’s care was funded under the previous social security benefits arrangements.

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.

The council assessed Mrs B’s finances and started charging her a contribution to the costs of her residential care.

The Ombudsman noted that Mrs B’s section 117 status was “not considered” during the assessment.

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.

Mrs B’s daughter (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, the report noted.

However, the council said Mrs B had never made any contributions towards her care and had received her pension directly.

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”.

After complaining to the Ombudsman, the watchdog found the council at fault for failing to provide Mrs B with free section 117 aftercare.

The Ombudsman said: “It [the council] has now refunded her. But it took too long to respond to Ms F’s queries and complaint and did not provide her with enough information to enable her to check the refunded mount. This has caused her time and trouble.”

To remedy the injustice caused, the Ombudsman recommended the council to:

• pay Mrs B £17,368.50 as an interest payment on the contributions she wrongly made on her care.
• pay her £700 to remedy the distress she has been caused.
• pay Ms F £300 to acknowledge the time and trouble she has been put to in pursuing the complaint.

The Ombudsman revealed that the council has agreed to the recommendations.

A spokesperson for Kent County Council (KCC) said: “KCC regrets any distress this matter has caused. The Council has recently reviewed and updated its procedures in relation to Section 117 aftercare to improve the accuracy of the recording and monitoring of people the Council supports who are eligible for S117 aftercare with the aim of preventing people from being charged in error.

“Whilst unable to discuss specific details of individual cases, I can confirm that KCC has agreed to the LGSCO recommendations and will fulfil them.”

Lottie Winson