Decision : Upheld
Decision date : 14 Oct 2019
The Ombudsman's final decision:
Summary: The complainant, Miss B said it was wrong when the Council and the CCG asked her to pay a third-party top-up fee towards accommodation provided to her father under the terms of the Mental Health Act 1983. She said she did not have help from the Council and the Trust to find a suitable placement and was bullied into signing a third-party top-up agreement. On the evidence available, the Ombudsmen do not find fault by the CCG. The Council and the Trust provided Miss B with good information when explaining why more expensive accommodation would require a third-party top-up payment. There were also faults in the way the Council and the Trust asked Miss B to sign a third-party top-up agreement and this is likely to have caused her avoidable distress. The Council and the Trust did not share a copy of an updated nursing needs assessment with two homes and as a result Miss B is left with doubt about the choice of accommodation process. The Council and the Trust have agreed to the Ombudsmen recommendations and will apologise, make an acknowledgement payment to Miss B. They will also remind officers of the importance of good practice when dealing with choice of accommodation.
- Miss B complains about Manchester City Council’s (the Council) and Manchester Clinical Commissioning Group’s (the CCG) decision to ask her and her family to pay a top-up fee when it was decided her late father, Mr G, should move to a nursing home. The accommodation was provided to Mr G when he left hospital as part of his section 117 aftercare package under the terms of the Mental Health Act 1983 when he left hospital.
- Miss B said the Council and Manchester Mental Health NHS Foundation Trust (the Trust) did not give her enough help and support to find a suitable nursing home placement. She also said she felt bullied into signing a third-party top-up agreement. Miss B claims the alleged faults caused her avoidable distress and a quantifiable financial loss. She would like the authorities to apologise and repay the top-up fees her and her family paid for the duration of her father’s placement.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- 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)).
- 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 takes action to stop the same mistakes happening again.
- 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(i), as amended)
How I considered this complaint
- I have considered information provided by the organisations named in this complaint and information from the complainant provided in writing and by telephone. I have also considered the law and guidance relevant to this complaint.
- The complainant, the Council, the CCG and the Trust were given an opportunity to provide comments on a draft of this decision.
What I found
Legislation and guidance
- Under the terms of the Mental Health Act 1983, a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met. Prior to doing so, two qualified medical practitioners must assess the patient and agree the patient is suffering from a mental disorder of a nature or degree that the patient ought to be detained in hospital in the interests of their own health and safety and/or safety of others. In conjunction with the opinion of the two medical practitioners, an Approved Mental Health Professional must also agree the legal criteria for detention are met and that admission, considering all the circumstances of the case, is the least restrictive option in the best interests of the person.
- The purpose of detention under section 2 is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
- Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
- Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health and social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for.
- The Care and Support Statutory Guidance in support of the Care Act 2014 says, “Where the care planning process has determined that a person’s needs are best met in a care home, the local authority must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings. Determining the appropriate type of accommodation should be made with the adult as part of the care and support planning process, therefore this choice only applies between providers of the same type.
The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice.”
- There will be cases where a person lacks capacity to express a choice for themselves. Local authorities should therefore act on the choices expressed by the person’s advocate, carer or legal guardian in the same way they would on the person’s own wishes, unless in the local authority’s opinion it would be against the best interests of the person.
- Regulations made under section 117A of the Mental Health Act 1983 enable persons who qualify for after-care under section 117 to express a preference for particular accommodation if accommodation of the types specified in the regulations is to be provided as part of that after-care. Local authorities are required to provide or arrange the provision of the preferred accommodation if the conditions in the regulations are met. The regulations give people who receive mental health after-care broadly the same rights to choice of accommodation as someone who receives care and support under the Care Act 2014.
- Where the cost of the person’s preferred accommodation is more than the local authority would provide in a personal budget then the local authority must arrange for them to be placed there, provided that either the person or a third party is willing and able to meet the additional cost.
- The Care and Support Statutory Guidance in support of the Care Act 2014 says, “Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act.”
- Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements. NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of the Act says the NHS and councils remain liable for the exercise of their own functions.
- The Ombudsmen will consider, in a complaint involving the NHS and the local authority, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and local authority work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault, they will attribute it to the partnership as a whole and expect each body to contribute to any proposed remedies.
- Manchester City Council delegates some of its statutory functions to Greater Manchester Mental Health NHS Foundation Trust via a s.75 NHS Act 2006 agreement. Delegated functions include the duty to carry out assessment and care planning in line with the Care Act 2014. Delegated functions also include determination of s117 aftercare needs under the Mental Health Act 1983.
- In September 2014, Mr G went into a mental health hospital under section 2 of the Mental Health Act 1983. The section status changed to section 3 in October.
- Mr G transferred to an independent hospital in April 2015 until his needs changed and the placement became unsuitable. The Council said this was because Mr G’s physical needs outweighed his mental health needs. A social worker completed a mental capacity assessment in December 2016 and concluded Mr G lacked capacity to decide about his destination on discharge from hospital.
- The social worker met with Miss B, an Independent Mental Capacity Advocate (IMCA), Mr G’s wife and other professionals forming a multi-disciplinary team. This was a best interests meeting as a result of Mr G’s lack of capacity. Before the meeting started the records provided show a discussion between the social worker and Miss B about funding a placement. The notes state the social worker explained s117 aftercare and confirmed the Council would fund a placement within its agreed rates or another local authority’s agreed rates. The notes record the social worker told Miss B if there was a top-up payment the family would have to pay. The social worker provided a copy of the legislation to the family to read as he was aware the subject would arise.
- Two nursing needs assessments were completed between January and February 2017 and these concluded Mr G needed a general nursing placement. A further best interest meeting was held in March with Miss B, her mother and members of the MDT present. The social worker acknowledged Mr G’s decision before he lacked capacity was not to go into care. However, now he lacked capacity to do so a decision needed to be made. At this time Mr G remained in hospital and he no longer needed treatment for his mental health in a hospital setting. Therefore, it was decided it was in his best interests to be moved to a least restrictive placement where nurses could administer his medication and support workers could assist with personal care.
- The record of the meeting show discussions around general nursing homes available in the Council’s area but also reference to homes being available outside the Council’s area. The notes also refer to a discussion about funding. The social worker recorded Miss B and her mother felt Mr G’s needs could not be met in a general nursing home. The notes say, “[Miss B] also stated that if she is to choose a nursing home and that there is a top-up to be paid, then the Local Authority should pick this up under s117 of the Mental Health Act 1983.”
- Internal communication between the social worker and the team manager sent in April show a discussion about Mr G’s case. The Council was aware it needed to offer Mr G’s family a placement which met his needs and was available within the budget. The team manager also advised if the family preferred choice cost more they [the family] would need to pay the difference. The social worker contacted Miss B to confirm this information and asked if she had visited any of the homes from the list provided. Miss B said she had looked at all the homes and “for many reasons none would meet my dad’s needs.” Miss B also said she had spoken to a third-party agency and was told the Council needed to provide care to meet
Mr G’s needs at any cost. She said she would consider legal action. The Council then sent nursing assessments to the homes which had vacancies.
- Miss B asked a nursing home, Home X, to assess her father’s needs in April. Home X, which was in a different local authority area, decided it could not meet Mr G’s needs in its general nursing unit but could meet his needs if he was placed in its dementia care (EMI) unit. The social worker spoke to Home X and it confirmed what it had told Miss B but said there were no vacancies at that time.
- At the beginning of May the social worker contacted members of the MDT and said all the general nursing homes approached had said they could not meet
Mr G’s needs because of the information in the nursing assessment. The social worker confirmed Home X was able to accept Mr G in its EMI nursing unit. The social worker tried to arrange a meeting to move the case forward.
- In May the Trust completed another nursing needs assessment and this confirmed Mr G had needs requiring an EMI setting and not general nursing. When responding to Miss B’s complaint the Trust said it did not involve Miss B in this assessment or notify her when it was done. It apologised to Miss B and said it would remind staff to involve family members in assessments and decision making where practicable.
- In June the social worker contacted Home X and it said it did not have a vacancy at that time in its EMI unit. Home X asked the social worker to send it a copy of the updated nursing assessment so it could arrange to assess Mr G. Home X also said the top-up fee was £150 weekly. The social worker contacted Miss B to confirm the discussion with Home X. Miss B thought the top-up fee was £40 weekly. Miss B also said she had taken legal advice regarding funding and her solicitor had advised the Council was interpreting the Care Act 2014 wrong.
Miss B also said she felt her father’s care should be funded by health.
- The social worker told Miss B about two other homes which had availability.
Miss B said she would look at one of the homes but said she did not like the other. The social worker confirmed Home X had said Miss B or the social worker should phone regularly to check for vacancies.
- At the end of June, the social worker spoke to Home X and it confirmed it had assessed Mr G and said it could meet his needs. Home X said Mr G could be admitted on 4 July if funding was agreed. The social worker said the case would be considered by a funding panel and so confirmation would be provided after this meeting date.
- The social worker spoke to the team manager and said the family had identified Home X but were refusing to pay the weekly £150 top-up fee. The social worker mentioned three other homes which had vacancies. The team manager said the Council would not pay the top-up under s117 as there was suitable accommodation provision available in Manchester.
- The funding panel approved the costs of Mr G’s placement at the local authority rate where Home X was located. A member of the panel told the social worker the family needed to sign a third-party top-up agreement before Mr G could be discharged. When the social worker contacted Miss B she said she would not sign the form but would pay the top-up in the interim pending legal action she intended to take against the Council.
- The social worker contacted Home X to provide an update on the funding issue. Home X said it would contact Miss B to explain that if funding was not in place by the next day the bed reserved for her father would go to the next person on the waiting list. Home X said this was because it could not afford to hold an empty vacancy.
- The next day the social worker spoke to Miss B and she said she would sign the third-party top-up agreement, but she was unhappy to do so. Miss B said she felt she had been bullied into signing the form. The social worker apologised for her feeling like she felt bullied and said the process was the same for everyone. The social worker then spoke to Home X who confirmed it had spoken to Miss B and she had agreed to pay the top-up fee in the interim so her father could be discharged. Miss B signed the third-party agreement which stated she had agreed to pay the top-up fee to the care home directly. Mr G was discharged to Home X shortly after this.
- Miss B felt the Council should meet the full costs of her father’s care no matter the cost because he was entitled to section 117 aftercare. This is incorrect. Miss B expressed her view about paying a top-up before a suitable placement was identified for her father. The information provided by the Council and the Trust was correct and in line with the Care Act 2014 and its statutory guidance. Therefore, although Miss B view differed to that of the Council’s there is no evidence to show what the Council told her was fault.
- There is evidence to show the Council provided Miss B with a choice of homes it contracted with and which fitted the criteria for general nursing. Miss B was then told to view the homes so she could select a preferred choice. This shows the Council provided Miss B with some help and support. When some of the homes received a copy of Mr G’s nursing assessment, they said they could not meet his needs in general nursing and suggested he needed EMI care. This then limited the choice Miss B and her family could make about a suitable placement for Mr G.
- From the evidence available, it is apparent Miss B remained proactive when trying to find a suitable nursing home placement for her father. She eventually identified Home X as a suitable placement although this was not included in the choice of homes the Council had suggested. This was probably because Home X was not located in the Council’s area and it was also more expensive than the amount in the personal budget.
- The Trust did not involve Miss B in the updated nursing needs assessment it completed. When responding to Miss B’s complaint the Trust accepted it should have involved her in the nursing needs assessment which concluded Mr G needed an EMI placement. This is fault because gaining input from family members is important when completing assessments. The Trust’s apology provides an appropriate remedy for the injustice caused to Miss B.
- The evidence available suggests Home X was Miss B’s preferred choice of placement for her father. The Council and the Trust supported Miss B with securing a placement from her preferred accommodation provider. Unfortunately, Home X did not have a vacancy immediately and this delayed Mr G’s discharge to a more appropriate setting. When this was known the Council offered Miss B the choice of two other homes which it said had vacancies at the time.
- The Council determined the two homes were affordable within Mr G’s personal budget and that they had vacancies. I have not seen evidence to show the Council or the Trust sent the updated nursing needs assessment to these two homes or any other home in its area. This is fault. The Council and the Trust should have shared a copy of the updated nursing needs assessment with the homes for completeness to ensure they could meet Mr G’s needs. Evidence from the Care Quality Commission, the regulator, shows the homes were suitable for EMI nursing so it is likely, on balance, these two homes would have been able to meet Mr G’s needs.
- I cannot say whether Miss B would have moved her father to either of the two homes identified by the Council as Home X was already her preferred choice. Miss B said she would view one of the homes but said she did not like the other home so did not complete a visit. This limited her choice to one, but I cannot say this is because of fault by the Council or the Trust. The evidence available strongly suggests Miss B may still have chosen Home X if either of these homes confirmed they were willing to accept Mr G. Nevertheless, faults in the Council’s processes leaves Miss B with uncertainty about the choice of accommodation.
- Miss B said she felt bullied into signing the third-party top-up agreement. There is no evidence the Council or the Trust bullied Miss B into signing the form. Miss B was clear from the beginning with the Council and the Trust she did not agree to a third-party top-up and this is noted in the records provided. However, this does not mean the Council was wrong when it asked her to sign the third-party top-up agreement.
- However, I do understand why Miss B may have felt the way she did. Once the Council approved funding it told Miss B she would have to sign the agreement form to facilitate her father’s discharge. The social worker also spoke to Home X which in turn told Miss B the vacancy it was holding for her father would be given away if funding could not be agreed. This may have led to Miss B feeling like she was put under pressure.
- The Care Act’s statutory guidance encourages councils to contract with providers for the full cost of the care fees including where a top-up is required. Although councils have discretion to come to a different arrangement with a third-party it is unlikely Miss B signed the form as a ‘willing’ third party. The evidence available suggests Miss B signed the form because she wanted to facilitate her father’s discharge to Home X rather than genuinely agreeing to the third-party agreement.
- The Council did not have to pay the full cost of the placement including the top-up just because of Mr G’s section 117 eligibility. The Council had a duty to provide Mr G with his preferred accommodation, but it did not have to meet any costs over and above the amount set in the personal budget. Therefore, it was right that Miss B needed to sign the third-party top-up agreement but the Council could have considered a different approach when she was reluctant to sign the form. For example, it could have considered whether to make a best interests decision to move Mr G to a different home in the absence of a willing third-party. The way the Council dealt with this matter is likely to have caused Miss B some distress at a time when she was dealing with the difficulties associated with moving her father into care.
- The CCG and the Council had a statutory duty to meet Mr G’s needs which fell under the terms of section 117 of the Mental Health Act 1983. The CCG and the Council discharged this duty and arranged and provided aftercare. I do not find fault by the CCG and the Council in this regard. When arranging aftercare the Council and the Trust provided information to Miss B which explained why a
top-up payment was required if her father moved to accommodation which cost more than the amount in the personal budget. This is in line with relevant legislation and statutory guidance. This also shows good practice.
- The Council offered Miss B choice of accommodation in line with legislation and statutory guidance but together with the Trust it should have shared an updated nursing needs assessment with the homes and Miss B for completeness. It did not do so, and this is fault. As a result, Miss B is left with uncertainty about the choice of accommodation process. It is also likely she experienced distress in the way she was asked to sign a third-party top-up agreement.
- The Council and the Trust have agreed to complete the following recommendations within four weeks of the Ombudsmen’s final decision:
- the Council and the Trust will apologise in writing to Miss B for the uncertainty she is left with about the choice of accommodation process. They will also apologise for the distress she experienced in the way they dealt with asking her to sign a third-party top-up agreement;
- the Council and the Trust pay Miss B £200 each to acknowledge the injustice she was caused which includes uncertainty and distress; and
- the Council and the Trust will remind their officers of the importance of sharing updated assessments with providers and the person using services or their representative. They will highlight the importance of doing this when offering choice of accommodation to people who use services.
- The Council and the Trust have agreed to the Ombudsmen’s recommendations. This provides a suitable remedy for the injustice caused by the faults identified by this investigation. I have completed the investigation.
Investigator's decision on behalf of the Ombudsman