Bath & North East Somerset Council (06B16774)

Adult care services                      Maladministration causing injustice 

12 December 2008

The complaint

Mrs T’s solicitor complained that the Council unreasonably discontinued funding of aftercare that she was entitled to receive under section 117 of the Mental Health Act 1983.

What happened

Mrs T was discharged from hospital following a period of detention under the Mental Health Act 1983. Initially the Council funded her aftercare in a residential care home under section 117. However, following a review of her case, the Council determined that Mrs T was settled in the home and no longer needed aftercare, so could be discharged from section 117.

The test that was applied – whether or not a person is ‘settled in a nursing or residential home’ – was an irrelevant consideration. The key question should have been, would removal of this person (settled or not) from this nursing or residential home mean that she was at risk of readmission to hospital. If the answer was ‘yes’ then she could not be discharged from aftercare.

The Ombudsman’s view

The Ombudsman found that the discharge criteria applied by the Council were seriously flawed and its decision about Mrs T’s continuing need for aftercare was, therefore, unsafe. The decision that Mrs T was no longer at risk of readmission to hospital was fatally flawed because the vital contribution of the residential home to her section 117 aftercare was ignored. The Ombudsman said:

“The practical effect of the Council’s criteria is to remove long term nursing or residential home accommodation from the definition of aftercare services. If that were to remain the position, the Council’s criteria would allow it to avoid its public responsibilities under Section 117 of the Mental Health Act 1983.”

Outcome

The Council had applied the discharge criteria to a number of other cases, some of which had not been reviewed. The Council argued that, despite any flaws in the criteria, those decisions were likely to be safe. But the Ombudsman nevertheless recommended that the Council should further investigate these cases to ensure that no maladministration had occurred, if necessary involving a suitable independent person to assist.

The Council agreed to:

• review its section 117 discharge criteria with the assistance of external legal advice and then reassess Mrs T’s need for continuing aftercare services;
• pay Mrs T’s residential care costs until such time as a new review properly determined whether she needed aftercare services under section 117; and
• pay Mrs T’s family compensation of £250.

Date Updated: 13/01/09