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Dorset County Council (18 012 800)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 14 Aug 2019

The Ombudsman's final decision:

Summary: The Ombudsmen find there was an avoidable and unreasonable delay in arranging support for a man entitled to s117 aftercare. As a result he missed out on an opportunity to benefit from this support for close to a year. The fault also meant his mother incurred costs she would not have otherwise had, in attempting to provide replacement care. The NHS Trust has agreed to apologise, make payments and create an action plan to address the injustice these failings caused.

The complaint

  1. Ms G complains there was a delay of over a year in assessing her son’s, Mr A’s, needs after she requested specific provision in 2014. Support based on the assessment started in January 2016.
  2. Ms G said she paid for private support during the delay but her financial situation meant Mr A remained without as much support as he needed. Ms G said that, as a result, Mr A’s health and her own suffered and she has paid for care which should have been free.
  3. Ms G complains the relevant organisations have failed to address the failings that occurred or provide an adequate remedy for the impact of the failings.

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The Ombudsmen’s role and powers

  1. 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).
  2. 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)).
  3. 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).
  4. Section 3 of the Mental Health Act 1983 (the MHA) allows people to be detained in hospital for treatment necessary for their health, safety or for the protection of other people. Section 117 of the MHA imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 3 of the MHA. Councils and CCGs cannot delegate these aftercare duties, regardless of the day to day arrangements for delivering a person’s aftercare. In view of this, the relevant council and CCG will always be included in Ombudsmen investigations about section 117 aftercare.

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How I considered this complaint

  1. I read the correspondence Ms G sent to the Ombudsmen and spoke to her on the telephone. I wrote to the organisations to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
  2. I shared a confidential copy of my draft decision with Ms G and the organisations under investigation to explain my provisional findings. I invited their comments and those I received in response.

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What I found

Relevant legislation and guidance

Section 117 aftercare

  1. Section 117 of the MHA requires councils and CCGs to provide free aftercare services to certain people. They must provide these services from the point the person leaves hospital until the council and CCG decide the person no longer needs them.
  2. Section 117 does not define what aftercare services are. The MHA Code of Practice (the MHA Code) gives some guidance on this. It details that:
  • ‘After-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition (and, accordingly, reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder)’ (Section 33.3 of the MHA Code).
  • Aftercare can ‘encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs’ (Section 33.4 of the MHA Code).
  • Aftercare should aim to support people ‘in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital’ (Section 33.5 of the MHA Code).
  1. People are entitled to ask for a Direct Payment to meet their s117 needs (Section 33.17 of the MHA Code).
  2. Dorset has a funding agreement for people entitled to s117 (the Funding Agreement). It details that:
  • After an initial settling in period, all s117 patients should be reviewed at least every six months. The Care Coordinator is responsible for arranging these reviews and ensuring the relevant NHS and council staff are involved (Section 6.2 of the Funding Agreement).
  • Any changes to a person’s care package must be submitted to the CCG and council within five working days of the proposed change with an updated support plan (Section 6.4 of the Funding Agreement).

Background

  1. In the early 2010s mental health professionals detained Mr A under section 3 of the MHA. He left a rehabilitation unit and became eligible for s117 aftercare in late 2013.
  2. The Trust initially provided Mr A’s aftercare through its standard community services. This included help from a Support Worker from the Trust’s Support Time and Recovery Team.
  3. Ms G had concerns that Mr A remained unwell and was not improving. Ms G made her own enquiries of other available support. In September 2014 Ms G told Mr A’s Care Coordinator she had asked a private care provider (the Provider) to assess Mr A. The Care Coordinator noted an intention to get advice and ‘assume direct payments may be helpful’. In the same month Ms G began to pay for, on average, two hours a week of support for Mr A from the Provider. One hour of support cost £14.
  4. In early November 2014 Mr A and Ms G met Mr A’s Psychiatrist and Care Coordinator. They discussed Mr A’s support including the private support Ms G had started to pay for. The Psychiatrist noted the Care Coordinator would seek funding for this to continue.
  5. In April 2015 Ms G wrote to the Trust and complained about a lack of progress. The Trust replied around a month later. It apologised for the delay in progressing the application for a Direct Payment. It said this would now be the Care Coordinator’s focus of work.
  6. The Care Coordinator completed an assessment of Mr A’s needs in June 2015. This noted he wanted a Direct Payment to pay for six hours a week of support from the Provider.
  7. The Care Coordinator applied to the CCG for s117 funding for a Direct Payment for Mr A in November 2015. The CCG and Council considered the application and approved it for three months. Mr A began receiving a Direct Payment at the end of December 2015. The CCG and Council later agreed to continue funding the Direct Payment after the initial three month period.

Complaints process

  1. In February 2017 Ms G complained to the Trust. She complained there was a delay in arranging the Direct Payment (and, by extension, appropriate support) for Mr A from November 2014 to January 2016. Ms G said that during this period she could only afford to pay for a couple of hours of suitable support a week. Further, Ms G said the Trust had not provided adequate alternative support in the interim. She said, as a result, Mr A’s health and her own had suffered.
  2. The Trust replied at the end of August 2017. It acknowledged there had been a delay of approximately 12 months in assessing Mr A’s needs. It apologised. The Trust said the CCG and Council fund s117 aftercare. It said the CCG had advised it does not backdate or backpay funding for s117 aftercare.
  3. Ms G remained dissatisfied and made a follow up complaint, via an advocate, in September 2017. The Trust sent a final response in October 2017. The Trust said it had tried to meet Mr A’s needs through Community Mental Health Team (CMHT) resources. It said once it was determined they were not meeting his needs the team considered a Direct Payment. The Trust said the need for support via a Direct Payment was to do with the social aspects of Mr A’s care and support. It said this was not linked to a health need.
  4. The Trust reiterated its acknowledgement of the length of time it took to complete the paperwork to get a Direct Payment. It repeated its apology. The Trust said that throughout the delay Mr A continued to receive a full commissioned CMHT service. The Trust said ‘the issue of compensation is beyond the scope of investigating this complaint’.

Analysis

  1. As noted above, there should have been six‑monthly s117 reviews and it was the Care Coordinator’s responsibility to arrange them. There is no evidence they happened. This is fault. As a result there is less clear information about the plans for Mr A’s care than there should be.
  2. In the absence of any s117 reviews I am satisfied it is reasonable to use other Trust records as evidence of what the plans were for Mr A’s care. This includes the notes made the Care Coordinator in September 2014. These show the Care Coordinator was aware of the request for support from the Provider, and were conscious of the possible need for a Direct Payment. They also show the Care Coordinator intended to look into the matter.
  3. The clinic letter following Mr A’s appointment in November 2014 is also relevant. The Psychiatrist’s statement is evidence of an intention to apply for a Direct Payment for Mr A to pay for support from the Provider. As such, I consider the Trust agreed to apply for a Direct Payment to help meet Mr A’s needs in early November 2014.
  4. This, in turn, shows the Trust considered support from the Provider was appropriate to meet Mr A’s needs. In line with this, the Trust’s complaint response of October 2017 noted that it sought a Direct Payment once it was determined the CMHT’s resources were not meeting Mr A’s needs.
  5. In terms of assessing a person’s eligibility for a Direct Payment and applying for one, there are no set guidelines for how long this should take. The Ombudsmen consider it is reasonable to expect services to complete a non-urgent application in 12 weeks. From the meeting in November 2014 this would have been the end of January 2015.
  6. The Trust did not make an application for funding until approximately 52 weeks after the meeting in November 2014. Further, it asked for the Direct Payment to start on 1 January 2016 without any clear rationale of why it was not to start as soon as possible. Records show payments began at end of December 2015. They were not backdated.
  7. As such, the Direct Payment started around 60 weeks after the appointment in November 2014. This represents an avoidable and unreasonable delay of approximately 48 weeks. Around 32 weeks of this delay happened after the Trust apologised, in May 2015, for the initial delay and said the application would be the focus of its work on Mr A’s case. It seems possible that, had the required six monthly s117 reviews happened, they would have helped prevent some of this delay.
  8. This avoidable delay of 48 weeks is fault, on the part of the Trust. The Trust has already acknowledged there was a delay.
  9. The Trust argues this fault did not directly cause Mr A or Ms G any injustice or hardship. It said that it continued to provide services which could meet Mr A’s needs throughout the delay. The Trust argues that Ms G’s decision to fund additional support privately was a personal choice but not necessary to meet Mr A’s needs. However, this conflicts its own complaint response of October 2017. As noted above, this noted that the Trust applied for a Direct Payment after it had been established that the CMHT’s resources were not meeting Mr A’s needs.
  10. Therefore, while it is the case that Mr A continued to have access to regularly commissioned support throughout 2015, this was not adequate for his needs. In contrast, records show that the support Ms G was purchasing privately – and which the Direct Payment eventually provided – was proving to be helpful for Mr A. It follows that Ms G’s decision to purchase private support for Mr A was a reasonable one. She would not have had to do this beyond January 2015 if the fault had not occurred.
  11. The available evidence does not suggest there was a significant change in Mr A’s overall needs during this period. As such, on the balance of probabilities, the Direct Payments would have been agreed earlier if they had been applied for earlier. Therefore, if the fault had not occurred the Direct Payments would have been agreed and put in place 48 weeks sooner, at the beginning of February 2015.
  12. From the beginning of February 2015 to the end of December 2015 Ms G spent £1,288 on support from the Provider for Mr A. She would not have incurred these costs if the fault had not occurred. Therefore, this is a financial injustice to her. I have made a recommendation to put this right.
  13. The wider implications also need to be considered. Mr A’s Direct Payment was for six hours of support a week. Had the fault not occurred, Mr A would have received 288 hours of Direct Payment support over the 48 weeks from February to the end of December 2015. Ms G paid for as much as she could afford. This was a total of 92 hours of support over the 48 weeks. Therefore, even with the support that Ms G paid for privately, Mr A received 196 hours less than he would have if the Direct Payment had been in place earlier. In other terms, he got about one third of the support he would have got if the avoidable delays had not happened. Therefore, Mr A lost an opportunity to benefit from the full support he should have had for 48 weeks. This will not be put right by reimbursing Ms G’s avoidable costs.
  14. When the Ombudsmen make recommendations to address an injustice caused by fault they aim to put the person back in the position they would have been had the fault not occurred. As such, recommendations are not based on what a service would have cost an organisation. Rather, we try to address the impact on the individual. Therefore, I have not made a recommendation for the organisations to pay what it otherwise would have had to pay for Mr A’s Direct Payments, were it not for the fault.
  15. As noted above, the records show Ms G and professionals noticed a positive impact from the hours of support Mr A had from the Provider. There are too many variables and unknowns for me to be able to confidently say how much of an impact the missed hours would have had on Mr A had he received them. I simply do not know how Mr A would have been by January 2016 if he had received them. However, on balance, given six hours of support was what Mr A was found to need, there is a reasonable expectation that such support, instead of two hours a week, would have been beneficial over 48 weeks. Therefore, the loss of two‑thirds of this support is an injustice to Mr A. I have made a recommendation for a financial remedy to act as a tangible acknowledgement of this injustice.
  16. It is also evident that this experience was avoidably stressful and frustrating for Ms G. This is an injustice to her. Further, Ms G has also experienced avoidable time and trouble in pursuing her complaint which is further injustice. I have made a recommendation for a separate financial remedy for her, again to act as a tangible acknowledgment of this injustice.

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Agreed actions

  1. Within one month of the final decision the Trust will write to Ms G and Mr A and acknowledge the failure to complete the required s117 reviews for Mr A, in line with the Funding Agreement. The Trust will also acknowledge the potential impact this had on progressing Mr A’s case, and the impact it has on understanding the history of Mr A’s care. The Trust will also apologise to Ms G for the part this fault played in the wider failings and injustice.
  2. In its letter, the Trust will also acknowledge and apologise for the impact the delay in agreeing the Direct Payment had on Ms G and Mr A. In particular, for Mr A’s loss of opportunity to benefit from a service he should have got, and for the avoidable stress and time and trouble Ms G suffered.
  3. Within six weeks the Trust will reimburse Ms G the £1,288 she paid on private support from the Provider for Mr A over 48 weeks from the start of February 2015 and the end of December 2015. I made this recommendation to the Trust as I have found it at fault and responsible for the injustice. It may wish to approach the Council and CCG to discuss the funding for this. However, this should not delay the payment to Ms G which the Trust is responsible for making within the noted timescale. This also applies to the following recommendations.
  4. Within six weeks of the final decision the Trust will pay Mr A £1,100 as a tangible acknowledgement of the opportunity he lost to benefit from the full support he should have got over 48 weeks.
  5. Within six weeks of the final decision the Trust will pay Ms G £250 as a tangible acknowledgement of the avoidable stress, frustration, time and trouble she experienced as a result of the faults in this case.
  6. Within three months of the final decision the Trust will review this case alongside the systems and processes it has for the management of s117 patients and the completion of Care Act assessments. It should consider why Mr A did not get the reviews he should have had and why the delays occurred, and whether this is a systemic issue. In line with this, is should consider whether the systems and processes it has in place are adequate, and if they are properly understood by relevant staff. If the Trust identifies any shortcomings in its processes it should create a ‘SMART’ action plan to improve its service and help prevent recurrences. As with the financial recommendations, the Trust may wish to approach the Council and CCG to ensure that appropriate personnel with relevant expertise and authority are involved, to help ensure this work is valuable and effective.

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Decision

  1. I have completed this investigation on the basis that there was fault by the Trust leading to an injustice. The Trust has agreed to take action to help put this injustice right.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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