Decision : Upheld
Decision date : 24 Mar 2020
The Ombudsman's final decision:
Summary: A woman complained about failures in her section 117 aftercare by the council, an NHS Partnership Trust, and a Clinical Commissioning Group. The Ombudsmen find failures in the way requests for direct payments were considered. Social care assessments were not completed as they should have been. Community mental health services did not properly respond to referrals by other professionals. This caused injustice, but it did not cause the woman to be without support for over a year. The organisations have agreed to take action to remedy the injustice.
- A woman I will call Ms P complained about Lincolnshire Partnership NHS Foundation Trust (the Trust), Lincolnshire East Clinical Commissioning Group (the CCG) and Lincolnshire County Council (the Council). Ms P said:
- Failings by the Trust, Council and CCG resulted in her not having 30 hours per week support from a personal assistant (PA) between April 2017 and May 2018.
- Social care assessments were carried out without her knowledge or proper involvement and were based on out of date information about her and her diagnosis.
- She was asked to attend “s117 meetings” in September 2017, then told the meeting was cancelled but professionals met without her and did not do an assessment. A further assessment meeting was arranged for July 2018 but again the assessment was not done. A case manager from the CCG’s complex case team (the CCG) asked Ms P for evidence for the assessment, but later said it had not done the assessment and her funding was still in place. Ms P later received paperwork containing an incorrect and out of date diagnosis.
- She did not receive adequate support for her needs from the Community Mental Health Team (CMHT).
- Her support from a PA broke down again in October 2018 due to ongoing failings by the organisations.
- Her mental and physical health deteriorated significantly due to the prolonged lack of support from a PA and the isolation this caused. She also suffered stress and anxiety from trying to resolve the situation and make her complaint.
- Her mother tried to fill the gap caused by lack of support despite her own health difficulties. The strain from this caused a breakdown in their relationship.
- The complaint responses she received were contradictory, did not answer some of her questions, and did not reflect what she was told at the time. The Trust did not take some of the actions set out in the complaint responses, and the problems are ongoing.
What I have investigated
- I have investigated the complaint set out above. I considered events from February 2017 to October 2018.
The Ombudsmen’s role and powers
- 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. 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.
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team acting for both Ombudsmen has considered these complaints. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- 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 considered relevant records provided by Ms P, the Trust, and the CCG. I made enquiries of the Trust, Council and CCG and considered their responses. I spoke with Ms P by phone and considered what she told me. I took account of relevant policy, law and guidance.
- I shared a draft of this decision with the parties to the complaint and considered their comments.
What I found
- Section 75 of the NHS Act 2006 allows NHS organisations and councils to delegate their functions to one another. These arrangements are called Section 75 Agreements. Under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.
- In this case, the Trust delivers the relevant social care services for the Council under a section 75 agreement. Therefore, the Trust carried out the social care actions Ms P complains about. The Council is accountable for the social care functions the Trust completed for it.
- The Ombudsmen will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and council 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.
The Care Act 2014 and the Care and Support statutory guidance
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want involved.
- The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT).
Section 117 aftercare
- Ms P has previously been detained under section 3 of the Mental Health Act 1983, so she is entitled to aftercare under section117 of the Mental Health Act 1983 (s117 aftercare). This means the Council and the CCG have a joint legal duty to provide or arrange free aftercare to meet her relevant health and social care needs. The purpose of this is to reduce the risk of her mental condition worsening and the need for another hospital admission. Aftercare services should meet a person’s immediate health and social care needs and aim to support them to build skills to cope with life outside hospital. People are entitled to s117 aftercare until the CCG and council agree that they no longer need it.
- Annex A of the Care and Support Statutory Guidance says care plans for people subject to s117 aftercare should be drawn up under the guidance on CPA. Care planning should fully involve the person. Care plans should say the person is entitled to s117 aftercare and should specify which services will be funded under s117. The Code of Practice to the Mental Health Act also says s117 aftercare should be planned within the CPA framework.
- Direct payments are cash payments given to social care service users or their representatives so they can buy care services to meet their eligible social care needs.
- Before agreeing to a request for direct payments, councils must be satisfied that:
- the person has the capacity to make the request
- the regulations do not prevent it from making direct payments
- the person is capable of managing direct payments either alone or with support
- making direct payments is an appropriate way of meeting the relevant needs.
Complaint that failings by the Trust, Council and CCG meant Ms P did not receive 30 hours support per week from a PA from April 2017 to May 2018
- Up to March 2017 Ms P received support from an agency, but it gave notice. Ms P said in April 2017 her then social worker (Social Worker 1) told her she needed more specialist support. She said she asked Social Worker 1 if she could advertise for a PA, but Social Worker 1 said an agency would be better.
- Ms P said the same happened in May 2017, even though the psychologist she worked with (the Psychologist) told Social Worker 1 that Ms P had the capacity to employ a PA. In June, Social Worker 1 said she would liaise with the company which supports people in the area to employ PAs and manage their direct payments (the Bureau) about an advert. Ms P said at a meeting with the Bureau in August, the professionals agreed she would use an agency for 15 hours and employ a PA for 15 hours, but then they told agencies there were 30 hours available.
- The Trust’s first response to Ms P’s complaint said when Ms P asked to employ a PA the Psychologist and CCG liaised with one another and decided it was in Ms P’s “best interests to have an agency involved to provide continuity in the event of staff sickness or unavailability…support workers should have access to support and supervision and this is more easily provided by an agency”.
- Ms P replied that her requests were continually refused from March 2017 onwards. She said she asked the Psychologist several times over the months why Social Worker 1 did not let her place an advert to employ someone. Each time, the Psychologist said she did not know the answer and she had told Social Worker 1 that Ms P had capacity. Ms P said she did not want another agency due to bad experiences with the one she used until March 2017, and not allowing her to employ someone meant she had no support for over a year.
- In a further response, the Trust said it had not disputed that Ms P had the capacity to act as employer. It said there was no evidence that her request to employ a PA had been refused since March 2017. The Trust said Social Worker 1 had contacted the Psychologist to discuss what would be involved in acting as employer, so the Psychologist could discuss the role and responsibilities with Ms P, but Social Worker 1 had noted that Ms P had capacity to act as an employer. The Trust said the social care team “believed it would be best to keep all options open to meet [Ms P’s] support needs” through either agencies or a PA.
- The records show that in February 2017, the professionals planned that Ms P would receive support by employing a PA who had worked with her previously through an agency, for 18 hours a week.
- In March, Social Worker 1 wrote that she liaised with the Psychologist about how to ensure the care arrangements were safe. They proposed using the remaining hours for an agency, to allow for holiday and sickness cover. They also discussed Ms P employing someone to support her to raise any concerns she had with the PA and with the administration required to employ a PA. Social Worker 1 recorded that the Psychologist would discuss this with Ms P.
- The Psychologist then told Social Worker 1 Ms P had told her about some concerns she had about the proposed PA. She believed Ms P would prefer to look for support from agencies, which would offer more long term security. The next day, Ms P told the Psychologist she wanted Social Worker 1 to look at her employing a PA through the Bureau as well as looking for agencies.
- Later in March, Social Worker 1 recorded that the Psychologist would let Ms P know they would initially look for an agency to provide support as this could be set up quicker. If Ms P was assessed as capacity to employ someone then they would look into this for her. Another option was to use a mixture of an agency and direct employment. Social Worker 1 agreed to send the Psychologist a capacity assessment to complete. Then, Ms P’s former care agency reported concerns about Ms P’s behaviour. Over the following days, professionals from the Trust and CCG decided to look for specialist agencies to support Ms P.
- In April, Social Worker 1 noted that Ms P was not pleased that the professionals were looking for specialist agencies and thought general ones would do. Ms P asked about an advert for her to employ a PA directly. Social Worker 1 told Ms P that “it was now considered to be in her interests to have a professional agency”, so she would have staff who were well trained.
- In May, the Psychologist told Social Worker 1 she considered that Ms P had the capacity to decide who provided her care and how it was delivered. Social Worker 1 noted that the Bureau said it needed to consider her capability to employ someone. Social Worker 1 would look into this and into whether social services can decide how someone’s care is delivered. Throughout this period, the Trust was trying to arrange support for Ms P through an agency, but had not found one which could help.
- In June, the Psychologist and Social Worker 1 discussed potential agencies with Ms P, who agreed to consider them but also wanted to advertise for a PA. Late in the month, Social Worker 1 emailed Ms P to say an agency (Agency G) could work with her and suggested a meeting the following week. She said she would liaise with the Bureau about the advert. The Trust had not decided whether it considered that Ms P could manage employing a PA.
- In early July, Ms P did not attend a planned meeting with Agency G. She later said she did not want to use Agency G. Social Worker 1 noted that the Bureau would meet with Ms P and they would ‘go from there’ to ensure Ms P could manage direct employment. A planned meeting with the Bureau for 21 July did not go ahead because Ms P wanted the Psychologist to be present and the Psychologist was on leave.
- In August, Ms P and the Psychologist met with the Bureau to discuss the support Ms P was seeking and to draft an advert for her to employ someone. The Bureau placed an advert in early September. During September, Ms P reviewed applications for the PA role and rejected them all as unsuitable. Ms P agreed to consider the option of interim support from the social care team, but she was reluctant due to the distress it would cause her to build a relationship with someone who would then leave.
- In October and November, Ms P interviewed further applicants for the PA role and rejected them. The Trust continued to try to arrange agency support, but had difficulties for various reasons. Ms P was offered temporary support from a social care assistant again and declined. In December, Ms P agreed to accept support from Agency B and said she would not continue to look for a PA.
- Records of early January 2018 say Agency B would start providing support once various documents were completed. On 17 January Ms P cancelled a meeting with Social Worker 2, who noted that Ms P had also cancelled the previous four appointments which had delayed the start of the support. Support from Agency B should have started on 24 January but did not, and in early February Agency B said it could not proceed. Ms P asked that an advert was placed for 15 hours a week, and for the remaining hours to be provided by an agency.
- In March, Ms P interviewed applicants for the PA role. I have seen no record of the outcome, however in April the Bureau advertised again for the full 30 hours. Ms P employed a PA from May.
- Before agreeing for Ms P to employ a PA through direct payments, the Trust (acting for the Council) needed to follow the steps set out in the Care and Support Statutory Guidance (see paragraph 18) to make sure this was appropriate.
- I have seen evidence that the Psychologist considered Ms P had capacity to decide how she wanted to receive care. The content of the records of late March / early April suggest the professionals felt either Ms P did not have the capability to manage direct payments or that this was not an appropriate way to meet her needs (or both). They were entitled to decide that Ms P’s support should not be provided by a PA through direct payments. However, the Trust should have properly considered Ms P’s request for direct payments in line with the guidance. It should have documented its decision and its rationale for its decision.
- Instead, there is no evidence that over the following months the Trust reached a view about whether Ms P should have direct payments to arrange her care. In July, it noted that it would further consider whether direct payments were appropriate, but I have seen no evidence it did so before the Bureau placed an advert in September. This is fault.
- Ms P said she was unhappy that after plans were made for her to employ someone for 15 hours a week agencies were told there were 30 hours available. The records say that in November Agency B said it would consider offering 15 hours support but would prefer 30. This was put to Ms P and she agreed. I have seen no evidence the Trust sought to prevent Ms P from employing a PA during this period.
- In summary, I have not found that failings by the Trust prevented Ms P from employing a PA from April 2017 to May 2018. However, it failed to properly consider (and document) her requests for direct payments to employ a PA.
- Ms P said her mental and physical health deteriorated due to not having a PA during this time. There is evidence her health got worse and that the professionals were concerned about her mental state. They referred her to the CMHT, and I have considered the role of the CMHT below.
- I can see that this period was very difficult for Ms P. However, I must take into account that from June/July 2017 support was available to Ms P (through an agency) and she chose not to accept it. There is evidence of numerous attempts by the Trust to secure agency care throughout the period Ms P complains about. This did not go ahead for various reasons. Even once the Bureau advertised for a PA in September 2017, it took months to find an applicant Ms P was happy to employ. That was not within the Trust’s control. There is no way of knowing whether Ms P would have successfully recruited a PA had an advert been placed sooner. I do not consider that the fault I identified caused Ms P to be without support from April 2017 to May 2018.
- Though Social Worker 1 told Ms P professionals considered it to be in her interest to use a specialist agency in April, the records indicate that the Trust did not make a formal decision about this and was unsure of its own position. It is therefore unsurprising that Ms P was unsure of the Trust’s position and confused about the situation. The uncertainty and confusion this caused is an injustice to her.
- Ms P said her mother tried to fill the gap caused by lack of support despite her own health difficulties. Ms P said the strain from this caused a breakdown in their relationship. This is supported by information in the Trust’s records. Though the needs assessment of February 2017 to September 2017 says the social worker would write to Ms P’s mother about a carers’ assessment, there is no evidence she did. This is fault. However, I have not concluded that this led to an injustice. This is because it is not possible to say whether anything is likely to have happened differently if the social worker had offered Ms P’s mother a carers’ assessment.
Complaint that social care assessments were carried out without Ms P’s knowledge or proper involvement and were based on out of date information about her and her diagnosis
- Ms P’s complaint said when she got a copy of her records from the Trust, they contained a social care assessment dated 22 February 2017 which contained inaccurate information. She said she met with Social Worker 1 on that date, but to discuss employing a support worker from her previous agency. She said no needs assessment was done at this meeting. She said the social care assessment incorrectly said she had attacked others, took a knife to a social group for unknown reasons, and included that she had a mental health diagnosis she did not have. She had previously been diagnosed with this mental health condition, but a psychiatrist later said she did not have it.
- Ms P said she met with the Psychologist and Social Worker 1 to discuss this on 1 August 2017. Social Worker 1 said she would amend the assessment and send Ms P a copy to sign. Ms P received a further copy of the assessment on 18 September. Social Worker 1 had changed the needs, when they did not discuss those at the meeting. Social Worker 1 said she did not know how she had done that and would correct it, but she did not.
- The Trust’s first complaint response said Social Worker 1 originally carried out an assessment in February 2017 without involving Ms P because the Psychologist and Ms P’s previous agency said Ms P finds it distressing to meet new people, and she wanted to alleviate the situation for her. It said when they met to discuss employing the support worker, Social Worker 1 discussed Ms P’s care plan with her and she agreed it did not need changing.
- The Trust said the mental health diagnosis Ms P disputed was on previous assessments and documentation and it had a responsibility to consider and include historic information as necessary. It apologised for not informing Ms P of this and said it would look at an information sharing agreement.
- The Trust said there was historic information about incidents of physical aggression. Ms P explained to Social Worker 1 that this was historic, and following discussion with the Psychologist “there was no evidence to suggest that [Ms P was] a risk to others”. It said past information could not be changed, but “efforts were made to remove from the up-dated assessment (sic)”
- About Ms P’s concern that Social Worker 1 had not allowed her to see and sign the amended needs assessment, the Trust said Ms P had verbally agreed to accept support from agencies so it sent her completed versions of the documents to speed up the process. It said in future it would share the final version of needs assessments and ensure it checked them for accuracy and consent before sharing elsewhere. The Trust said it could not change past records, but it could address inaccuracies or points of disagreement in later records.
- Ms P replied that she had not consented for an assessment in February 2017; she did not know about it. She said the Trust should have had her consent to share information with other parties (agencies in particular) and she would not have consented to sharing the recorded information. She said a psychiatric report from 2014 says there is no evidence she has the diagnosis, and this report is in her records. She said she told the Psychologist and Social Worker 1 this in May and August 2017.
- Ms P said the misleading information that she asked Social Worker 1 to amend was still in the assessment in December 2017 and January 2018. The inaccuracies were that she was likely to attack others, had attacked others historically, and that she could be aggressive to others due to misinterpretations and misunderstandings. She said her needs assessment incorrectly said she had taken a knife into a social group for unknown reasons, when the reasons she had taken it were known (it was a small folding knife she fidgeted with to help anxiety).
- Ms said she discussed this with Social Worker 2 when they met in January 2018. The misleading information was still in the assessment when she met Social Worker 2 in June, and again Social Worker 2 said she would amend it. She met with Social Worker 2 again in July and the assessment was still not amended.
- In a further complaint response, the Trust apologised that Ms P’s diagnosis was misrepresented in assessment documents. It acknowledged that it shared irrelevant and inaccurate information with others and apologised for this.
- The Trust apologised that the needs assessment of February 2017 was not shared with Ms P at the time and that she was not involved with it. It said it had considered it prudent to do what was necessary to put care in place quickly. It said Social Worker 2 had sent out a new support plan and risk assessment in August 2018, with updated information and amended language. It hoped this resolved the matter.
- The Trust’s documents include a version of the adult needs assessment form started on 22 February 2017 and completed on 7 September 2017. The form was amended over these months, but the author did not record the dates on which they completed or revised each part of the text. Therefore, in parts it is not possible to tell which information was added from the meeting of 22 February or where or when information was removed or revised.
- On 8 June 2017, the Psychologist forwarded Social Worker 1 an email from Ms P. Ms P had received a copy of her records and was unhappy they contained an assessment from February she did not know about and with the reference to a knife. Social Worker 1 replied the same day to apologise to Ms P for any upset caused. She said she had not wanted to put Ms P through assessment meetings because she’d heard this would cause her unnecessary stress. She said she would change and put in context the information in the assessment.
- On 1 August, Ms P, the Psychologist and Social Worker 1 met to review the information in the assessment. Social Worker 1 said she had obtained this from previous assessments and from other professionals in the Trust. She said she was advised that contact with people she did not know would distress Ms P so she completed the assessment in Ms P’s best interests so funding could be organised. Ms P said she would not harm other people and she had not assaulted anyone since she started living in the community more than a decade earlier. Social Worker 1 said it might take a couple of weeks before she could update the assessment to reflect the discussion.
- On 25 September, Ms P went through the assessment with Social Worker 2 and the Psychologist and highlighted the areas she wanted to be changed. Social Worker 2 noted that she would follow this up with Social Worker 1.
- Social Worker 2 recorded on 5 June 2018 that she updated the assessment documents. She went through the documents with Ms P on 7 June and 6 July. Ms P noticed an entry which said she had physically attacked others and asked where this had come from. The Social Worker said she would look into this.
- On 25 July, Ms P told Social Worker 2 she was comfortable with the content of the care and support plan overall but did not want it submitting until she had received a copy with further amendments. She said she was unhappy with the number of assessments. Ms P received an amended version on 31 July.
- The Trust’s failure to ensure the needs assessment completed by Social Worker 1 contains a clear audit trail of which information was added on which date is poor record keeping, and is fault. Consequently, my investigation of this part of Ms P’s complaint is hampered. That is an injustice to Ms P.
- Under the Care and Support Statutory guidance, authorities should involve the person in assessments and support them to have choice and control. If the person struggles to engage with the assessment process, they should support them to do so. Regardless of the need to complete paperwork to get funding in place, the Trust should not have reviewed Ms P’s needs assessment in February 2017 without her knowledge and without involving her. That was fault, and caused Ms P distress.
- Following a needs assessment, authorities must give the person a record of the assessment. The Trust failed to do this, until Ms P made a subject access request. This was also fault.
- Regarding the information about risk, authorities are entitled to include information about historical incidents. A history of incidences of violence or physical aggression is relevant to an assessment of current risks. However, information should be accurate and sufficiently detailed to properly inform a consideration of current risk. This means that if there have been no incidences of physical aggression for a number of years, this should be included.
- A record of a meeting of 1 August 2017 says the Psychologist and Ms P reviewed Ms P’s historical records and there had been no physical aggression since Ms P had moved into the community more than a decade earlier. The social care records of 2017 should have included this information for context.
- The Trust’s risk assessment of March 2017 includes: “Reported to have taken a knife to a social group, reasons unknown…”.
- Had staff properly involved Ms P in the needs assessment from February 2017, her reasons for carrying the knife would not have been “unknown”, since she could have explained them. I agree with Ms P that the version of the text which includes “reasons unknown” implies greater risk. Therefore, not including Ms P’s view is misleading to some extent. That said, someone carrying a knife at all, even a small one used as a comfort item, is still relevant information for a risk assessment.
- Regarding the historic diagnosis, the version I have seen of the needs assessment started in February 2017 does not include this. It is likely this was removed when the document was edited. A record of the meeting of 1 August 2017 says they agreed to include in the assessment that Ms P struggles with emotional regulation. The assessments and the information provided to agencies, should not have included that Ms P had a diagnosis she does not have. This was fault, and caused Ms P distress. I have not found that this affected Ms P’s care, because it is not possible to know whether it affected the decisions of those approached to provide her care.
- It appears that it took the Trust almost a year to update the assessment to reflect the discussions in the meeting of 1 August 2017. This was fault.
Complaint about the “s117 meetings”
- Ms P said a meeting with the CCG was arranged for 19 September 2017 to complete an assessment (of her health needs to determine the funding split between health and social care). She said she told the Psychologist on 12 September that she could not attend because she had a hospital appointment, and the Psychologist told her the meeting was cancelled. She asked whether the meeting went ahead, and if so who attended and whether an assessment was carried out.
- Ms P said the assessment still did not go ahead at further meetings of January and July 2018. On 6 February 2018 she asked the Psychologist not to include her previous diagnosis in the health needs assessment, but when she received the completed document in March 2019 it said she had the diagnosis.
- The Trust said the Psychologist did not tell the other attendees of the September 2017 meeting that Ms P could not attend until the day of the meeting, so the professionals decided to carry out the assessment when Ms P could attend. However, the professionals still met to discuss progress with the arrangement for care. The Trust said a further meeting took place in January 2018 which Ms P had attended.
- The records of the meeting of 19 September are brief, and say those present discussed plans to arrange Ms P’s care and about whether she should be on CPA.
- Records of a further meeting including the CCG on 26 January 2018 say those present discussed arrangements for Ms P’s care. The CCG gave the Psychologist a copy of a health needs assessment to complete with Ms P.
- On 6 February 2018, Ms P emailed the Psychologist and asked that the health needs assessment did not include the old diagnosis.
- On 2 March, the Psychologist noted that she needed to discharge Ms P at her request and she could not continue with the paperwork for the health needs assessment. Ms P gave the paperwork for the health needs assessment to the Trust on 19 June.
- There was a further meeting with the CCG, Social Worker 2 and Ms P on 31 July. The records say they went through the paperwork to look at Ms P’s areas of need.
- The CCG’s records of November 2018 say the CCG had not completed the review due to lack of capacity. Another member of staff would do it. Social Worker 2 told the CCG Ms P was concerned that she would be “taken off 117”. The CCG said this had not been considered. It emailed Ms P to let her know this, to apologise that the assessment was not complete, and to let her know her funding had not changed.
- There was no fault with the professionals meeting to discuss progress in Ms P’s absence in September 2017. They were entitled to do this.
- In response to my enquiries, the CCG said it completed a health needs assessment for Ms P in 2014, and next in March 2019. It said it regrets that none was completed from 2015 to 2019. This delay is fault, and caused Ms P frustration. However, I have seen no evidence that it affected Ms P’s care or funding.
- There was a delay between Ms P providing the paperwork in June 2018 and the completion of the assessment in March 2019. This is fault and appears to have caused Ms P some frustration. However, I have not seen evidence that it had any impact on her care.
- Ms P said that when she received a copy of the documentation from the health needs assessment of March 2019, it included that she had the old diagnosis, as though it was current. I cannot see this in the assessment document. Therefore, I have not found fault here.
Complaint about not receiving adequate support for her needs from the CMHT
- Ms P told us she was unhappy that though she was referred to the CMHT several times and explained her mental health difficulties the CMHT said she just needed social care support. Ms P said the Psychologist told her she was having to act as psychologist, social worker and support worker all rolled into one, which was not her role. The Psychologist said she could not provide Ms P with counselling until support was in place.
- Ms P said the CMHT said her mental health deteriorates due to lack of social care, but it would not help her with her mental health, even until social care was in place. Ms P said the CMHT told her it would not accept her because she falls under the learning disability team, but the learning disability team said she does not fall under its remit because she does not have a learning disability. When she was referred to an eating disorder service she was told she needed see the a team specialising in autism, but she was also told the autism team would not see her because she does not have a learning disability.
- The Trust’s complaint investigation report did not address this part of Ms P’s complaint and Ms P did not raise this issue further with the Trust.
- On 4 April 2017, Social Worker 1 referred Ms P to the CMHT, as the Psychologist recommended this. They wanted the CMHT to assess Ms P’s mental health and consider putting her on CPA and offering support, noting that Ms P was subject to s117.
- A CMHT assessment was planned for 5 May but Ms P did not attend. Her later complaint letter says this was because she had no transport or support. The CMHT discussed the referral and agreed that the CMHT’s service was not suitable for her. They said she needed a structured in-patient service to help her develop coping strategies to manage her emotions and behaviour. They offered her a further appointment.
- Records of 25 May say Ms P had contacted social services seeking support. She was referred to the mental health crisis and home treatment team (Crisis Team) in one area, which referred her to the Crisis Team in another area, which emailed the Psychologist and closed her case.
- Records of 15 June say Ms P did not attend an assessment appointment with the CMHT. The CMHT wrote to her to say if she did not contact it by 29 June it would assume she did not wish to access the service. As Ms P did not contact the CMHT, it discharged her on 29 June.
- On 18 July, the Psychologist noted that there was confusion around whether Ms P was on or not on CPA. She told Ms P that due to the complexity of her case she should be on CPA.
- At a meeting on 1 August, Ms P said she was told in 2015 she had permanent fast-track access to the CMHT because of her s.117 entitlement. No one had told this had ended. The Psychologist said she had worked with Ms P for two years. This was because the CMHT referred Ms P to the learning disability team. The CMHT knew that Ms P should be under the mental health team rather than the learning disability team. But the CMHT considered that engagement with Ms P was difficult because of her autism, and it did not have autism expertise itself. After the Psychologist started working with Ms P the CMHT stopped working with her, which was not the basis on which the Psychologist had agreed to become involved.
- Records of 19 September say the Psychologist asked the CCG’s case manager if Ms P should be on CPA, noting that this was discussed in March but nothing was done about it. The CCG’s case manager was surprised this was not in place and said it should be looked into straight away. They agreed Ms P should have a care coordinator allocated.
- On 20 September, Social Worker 1 referred Ms P to the Crisis Team with concerns about her mental health. The Crisis Team said Ms P did not engage with it and advised her to refer Ms P to the learning disability home treatment team. Social Worker 1 then spoke to the learning disability home treatment team, which said Ms P did not meet its criteria and Social Worker 1 should refer her to the Crisis Team which could seek support from the learning disability team if needed. The Crisis Team called Ms P to offer her an appointment. Ms P said she could not get to the appointment.
- The following day, the Crisis Team noted that it would not see Ms P at home because there was an alert on the computer system that said Ms P should only be seen in safe places. The Crisis Team liaised with the Psychologist who agreed to visit her and let the Crisis Team know of any concerns she was at risk.
- Later, the Crisis Team recorded that the Psychologist did not consider that Ms P was at immediate risk. However, an email from Social Worker 1 to the Psychologist and Social Worker 2 says the Crisis Team now said Ms P did not meet their criteria because the risk was ongoing and not imminent, but the Psychologist felt the Crisis Team was not listening to her concerns that Ms P was at high risk.
- Social Worker 1 contacted the Crisis Team, which said Ms P had a learning disability so the Crisis Team should not be involved. The Crisis Team said it had tried to contact Ms P and that if she needed support she would have answered the phone. The Crisis Team said it could not see her that day, and if it was to see her the following day it would need support to do so.
- On 25 September, Ms P told the Psychologist and Social Worker 2 she was unhappy with the Crisis Team’s response. She asked why she did not have a care coordinator, given her s.117 entitlement. The Psychologist noted that Ms P’s notes said she was placed on indefinite ‘fast track’ to the CMHT in 2015 due to her s.117 status. Ms P was unhappy with the local CMHT’s response to her mental health needs, and asked to see another CMHT.
- Social Worker 2 referred Ms P to the CMHT on 27 September for a care coordinator and to see a psychiatrist. Ms P attended an assessment appointment with the CMHT on 27 October. The Psychologist attended to support Ms P. The Psychologist said the CCG was shocked Ms P was not on CPA, and she should be on this to ensure she had regular meetings and reviews of her mental health. The CMHT assessor noted that they would discuss the referral at the team meeting, with a view to allocating a care coordinator due to Ms P’s anxiety, low mood and suicidal thoughts. The care coordinator would support Social Worker 2 to put a care package in place.
- On 1 November, the CMHT noted that it discussed the referral in a team meeting, and the role for the CMHT was unclear. They would check that Ms P was open to psychiatry and the social care team. They liaised with the Crisis Team, which said it was not commissioned to work with people with autism so would not accept a referral.
- Social Worker 2 spoke with the CMHT on 9 November. The CMHT said it was unclear what its role would be, and it would discuss this further once it had received further information it would request from the Psychologist. The CMHT said it appeared Ms P’s needs were social care rather than health. The CMHT said it no longer offered long term fast-track access to the CMHT, and Ms P’s had come to an end. It said it did not have a record that Ms P was entitled to s.117 aftercare.
- On 10 November, the CMHT emailed the Psychologist to say it did not consider there was a role for the CMHT. It said Ms P functioned well when she had a social care package, and this was her primary need. It said if the Psychologist felt Ms P was in crisis she could refer her to the Crisis Team. It said the CMHT’s remit was to provide short term focused therapy where there was a mental health need, and if the Psychologist was providing this then it did not see a role for itself.
- On 16 November, the Psychologist wrote to the CMHT to say she was extremely disappointed by the outcome of the assessment. She said she was not seeing Ms P in her role as learning disability psychologist, she was commissioned to provide a psychological service under the mental health service, but due to the circumstances her role had become fudged with emotional support and social work. She said Ms P’s mental health had deteriorated, and she needed to be on CPA and have a care coordinator. Once she had social support in place, she needed therapeutic interventions. The CMHT replied to say its role was short term therapy. It said the matter would be discussed again with the CMHT manager and they would respond further.
- On 17 November, Ms P’s GP referred her to the Trust for therapy for anxiety and depression. On 29 December, she received a letter from the Trust which said its records say Ms P was under the care of the learning disabilities team which was responsible for meeting her mental health needs, so it would take no further action.
- On 26 January 2018, the CCG, Psychologist and Social Worker 2 discussed Ms P’s care. The CCG said Ms P should have a care coordinator because of her section 117 status. They agreed the Psychologist and Social Worker 2 would put their concerns that Ms P should be on CPA in writing to the CCG’s case manager so he could escalate the matter.
- On 31 January, the Psychologist emailed the CCG to ask that Ms P was put on CPA. She said Ms P’s needs were complex and she was entitled to s.117. She has autism, and needs considerable support to access the community. She had not had full support for a year and her mental and physical health had deteriorated. The CMHT declined to accept her as “they incorrectly made the assumption she is open to [the learning disability service] but this is not the case.”
- Records of 2 May say Ms P was struggling with her mental health. She told the Trust that when she contacted the Crisis team it told her to phone the learning disability team, but she was not under the learning disability team. The social care team asked that the CMHT offer Ms P an assessment and liaise with Social Worker 2.
- The Trust’s complaints team emailed the Psychologist, noting that the Trust’s computer system showed that the Psychologist was the lead professional for Ms P, which seems to be causing confusion for the Crisis Team. The Psychologist replied that she felt Ms P’s primary need was for social support but she needed to be on CPA and to access psychological therapy. She said Ms P needed to be open to the mental health team. She had become involved to support the mental health team, but it was then recorded that Ms P was under the learning disability service when this was incorrect. The Psychologist said she was willing to act as lead psychologist for Ms P if it was clear that Ms P was under the mental health service, to avoid confusion.
- On 3 May, the CMHT wrote to Ms P to offer an appointment on 31 May. On 31 May, Ms P rang the Crisis Team, distressed about difficulties with her PA. She did not attend the appointment with the CMHT.
- On 7 June, Social Worker 2 advised Ms P that the CMHT suggested she meet with a psychiatrist and that they explore cognitive behavioural therapy and an emotional first aid group. On 26 June, Ms P attended the CMHT’s offices for an assessment but left before it started. The records say this may have been because another service user was being verbally aggressive in the waiting room.
- A record of 19 July says the CMHT had asked Ms P to contact it by 17 July. As she had not done so, so it closed her case. On 31 July, Ms P was referred to the CMHT again.
- On 8 August, the CMHT wrote to Ms P offering an assessment on 25 September. Ms P phoned on 25 September to say she could not attend because she had no support with which to do so.
- In early 2019, Ms P a attended an assessment appointment with the CMHT. It decided not to allocate her a care coordinator. In April, the CMHT told Social Worker 3 this was because the CMHT did not carry out monitoring and did not hold cases if there were concerns.
- In response to our enquiries, the Trust said the Psychologist had twice asked for Ms P to be supported through CPA and have her s117 aftercare reviewed. We asked why it had not supported Ms P through the CPA process. It said it saw Ms P in October 2017 and discussed the outcome of the assessment in the multidisciplinary CMHT meeting. It said it felt Ms P’s needs were best met by social care, and once care was in place her “current presentation would be stabilised”. It said at the time of the assessment she was receiving psychological therapy from Clinical Psychology for depression and anxiety management and it could not identify a role for the CMHT.
- Though the CMHT told the social worker on 9 November it would request further information from the Psychologist to assist its decision, there is no record it did so. The Trust’s response to our enquiries fails to take account of the fact that – as it knew – the Psychologist was not providing Ms P with psychological therapy. When the Psychologist put this in writing to the CMHT on 16 November it said it would discuss the referral further with the CMHT manager, but there is no evidence it did so. The CMHT did not properly consider the available information to make its decision. This is fault.
- The CMHT told the Psychologist its role was to provide short term therapy, but there is no evidence it considered providing this to Ms P at the time. Further, short term therapy is not the only role of the CMHT. Its role includes care coordination for people under CPA. Under the Mental Health Act Code of Practice and the Care and Support Statutory Guidance, s117 aftercare should be planned through the CPA framework. This did not happen for Ms P and no good reason for this was recorded. This is fault.
- The CMHT said it appeared Ms P’s needs were social care rather than health. It does not appear to have taken into account that the CCG jointly funds Ms P’s care package on the basis her needs are both health and social care.
- It is not possible to know what may have happened differently had the CMHT considered the referral as it should have. But the lost opportunity to properly consider Ms P’s needs is an injustice to her.
- The CMHT told the Psychologist on 10 November that Ms P could access the Crisis Team even though the Crisis Team told it days earlier it would not accept a referral for Ms P. The Crisis Team’s responses to referrals for Ms P in 2017 added to the difficulty for Ms P and the professionals supporting her. The record that the Psychologist considered the Crisis Team was not listening to her in September 2017 is concerning.
- Ms P had several referrals to the CMHT which did not progress. In some cases she did not attend appointments or respond to correspondence. However, her records are clear that she needs support to access the community so it is unsurprising she did not attend appointments when no support was in place.
- The records suggest Ms P has been ambivalent about seeking support from the CMHT. She told me she is unhappy that she kept receiving assessment appointments after referrals by the social workers when she knew the CMHT would refuse to see her.
- There was a prolonged period where the Psychologist, social workers and CCG considered that Ms P should be supported by the CMHT and the CMHT did not agree, resulting in re-referrals. This caused Ms P distress. Had the CMHT properly considered the referral following the assessment of October 2017, this could have been avoided. Even if the CMHT had properly reached a decision not to support Ms P and communicated this, the differing views of the professionals could have been reconciled and the further referrals avoided.
- I am concerned by the number of times Ms P tried to seek support from various teams within the Trust which refused to help her based on incorrect information (usually either that she was receiving psychological therapy or that she was under the care of the learning disability service). Ms P got different messages from different professionals about whether she should or should not be under CPA. There was a failure of various parts of the Trust to properly work together in Ms P’s interests. This is fault. It is unsurprising that this caused Ms P to feel distressed and unsupported.
- The Psychologist noted that Ms P’s records say she had indefinite access to the CMHT, and the CMHT said this had ended. I have seen no evidence of a decision to end this access, and Ms P said no one had told her it had ended. This is fault. The CMHT should not have decided Ms P no longer had fast track access without a properly made decision to that effect and without communicating this to Ms P. I note the Psychologist’s comment of August 2017 – that the CMHT had stopped working with Ms P when she became involved when this was not what was agreed – with concern.
- I have seen no evidence that the CCG followed its plan to escalate its concerns that the Trust was not supporting Ms P through CPA. That is fault on the part of the CCG. I cannot say whether anything would have happened differently if the CCG had escalated its concerns, so I have not found that this caused injustice.
Complaint that support from a PA broke down in October 2018 due to ongoing failings by the organisations
- This was not included in Ms P’s complaint to the Trust or its response, as it happened after that process concluded. I decided to look at because I did not consider that it would be in her interests to ask her to follow a new complaints process for this element of her complaint to us.
- Ms P told us that in July 2018 her PA was asked to send evidence to the CCG for her s117 health needs assessment. The PA did this, but they heard nothing. The CCG told them in September 2018 that her s117 review was still not complete because of workload pressures, but the funding was still in place. Then, the Bureau told Ms P they were not receiving any funding, and they were paying the PA through a surplus from when she had support through an agency. They said the money would soon run out. Shortly afterwards, the PA quit. Ms P believes the PA was concerned that Ms P would not receive funding to pay her.
- Ms P also told us the Trust told the PA about Ms P’s historical risk information and told her she had to attend meetings, which were difficult for the PA to attend around her other commitments. The PA was unhappy about this. Also, the PA felt they could not meet Ms P’s needs with only 15 hours a week.
- I have seen no indication in the records that Ms P’s funding for support was at risk. I appreciate Ms P’s concern that it was difficult for the PA to attend additional meetings. Had this been discussed with the Trust, alternatives could have been considered.
- I have seen no evidence linking the departure of the PA to failings on the part of the Trust, Council and CCG. Therefore I do not find fault here.
Complaint about complaint handling
- The Trust’s complaint responses contain conflicting information. The first response indicates the Trust decided Ms P should have an agency (rather than employing a PA) while the second response indicated it did not make this decision. Neither response gives a full picture of what happened. This is fault. Ms P has experienced some frustration and distress because of this, which is an injustice.
- The Trust’s responses did not address all the concerns Ms P raised. For example, they did not address her concerns about the CMHT. The Trust should either have addressed all her concerns or discussed its plan for investigating and responding to her complaint with her and explained why it would not look at all her concerns. I have not seen evidence it did this. This is fault.
- I have not seen evidence that the Trust failed to carry out actions it agreed to take in the complaint responses. In particular, I have not seen evidence that it continued to include the former diagnosis in the records.
- As Ms P is entitled to section 117 aftercare, the Council and CCG are jointly responsible in law for meeting her aftercare needs. The Trust is also responsible because it is commissioned by the Council and CCG to deliver mental health and social care services in the area. Therefore, I made recommendations to all three organisations.
- Within one month of this decision, the Trust, Council and CCG will jointly write to Ms P to acknowledge what went wrong and to apologise for the injustice caused by the faults in her care. They will explain the current position regarding arrangements for her care and their next steps to ensure she receives care in line with the needs identified in her social care and health needs assessments.
- Within one month of this decision, the Trust, Council and CCG will each pay Ms P £250 to acknowledge the impact of the faults in her care.
- Within two months of this decision, senior officers from the Trust, Council and CCG will jointly identify the causes for the faults in Ms P’s care and identify what they need to do to prevent similar faults occurring in future, both for Ms P specifically and also for other people who may be similarly affected. They will write to Ms P and the Ombudsmen to explain their findings and the actions they will take. The Trust will send a copy of this letter to NHS Improvement and CQC along with a copy of this decision statement.
- I did not recommend that the organisations agree to Ms P employing a PA directly, as Ms P requested, because this is a decision for them to make. However, they will ensure that decisions about this are made in line with the Care and Support Statutory Guidance and are properly documented and communicated to Ms P.
- I did not recommend that the organisations provide clarity to Ms P about her diagnosis because I have seen no evidence that any of them still document that she has the former diagnosis. It appears that this is considered a past diagnosis. If Ms P still wishes for clarification about her diagnosis, she can ask the Trust to offer an appointment with a psychiatrist and the Trust will decide whether to agree.
- I find that:
- The Trust did not properly consider Ms P’s requests to employ a PA with direct payments and record a decision in line with the steps set out in the Care and Support Statutory Guidance. This was fault. It did not lead to Ms P being without support from a PA from April 2017 to May 2018, and I cannot link it to Ms P’s deterioration in health. However, it caused uncertainty and confusion to Ms P.
- The Trust failed to offer Ms P’s mother a carers’ assessment when it knew she was providing Ms P with care. This is fault but I have not found that it caused an injustice.
- The Trust failed to ensure the needs assessment started in February 2017 contains a clear audit trail of which information was added on which date. This is poor record keeping and is fault. This hampered my investigation into Ms P’s complaint. That is an injustice to Ms P.
- The Trust reviewed Ms P’s needs assessment in February 2017 without her knowledge and without involving her. It also failed to provide her with a copy of it. This was fault, and caused Ms P distress, which is injustice.
- The needs assessment contained inaccurate and misleading information, and it took the Trust too long to revise it after Ms P raised concerns about this. That is fault, and caused Ms P frustration and distress.
- The Trust and CCG are not at fault for meeting to discuss Ms P’s care in September 2017 when Ms P could not attend.
- The CCG is at fault for taking too long to review Ms P’s health needs assessment, which caused Ms P frustration.
- The Trust is at fault because the CMHT declined to support Ms P following its assessment in October 2017 without having properly considered the available information or properly considering its role in relation to Ms P’s s117 status or her needs. This led to a lost opportunity to properly consider Ms P’s needs and how they would best be met. It also led to several re-referrals to the CMHT for further assessments, which caused distress to Ms P. This is an injustice.
- The Trust is at fault because various teams did not properly work together in Ms P’s interests, with various referrals declined because of incorrect information. This caused Ms P distress.
- The Trust is at fault for deciding Ms P no longer had fast track access to the CMHT without documenting a rationale for this decision or communicating it to Ms P. This contributed to the various difficulties Ms P experienced with referrals to the CMHT.
- The CCG is at fault for failing to follow its plan to escalate its concerns about Ms P not being on CPA to the Trust. I have not found that this caused injustice.
- Ms P’s PA support breaking down in October 2018 was not caused by fault.
- The Trust is at fault because its complaint responses contained conflicting information and did not address all her concerns. However, I have not found that the Trust failed to carry out actions it said in the complaint responses it would take.
Investigator's decision on behalf of the Ombudsman