Luton Borough Council (21 004 603)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 30 Mar 2022

The Ombudsman's final decision:

Summary: Mrs B complained the Council and the CCG failed to pay her sister’s, Miss C’s, charges for accommodation for a period when she was entitled to free aftercare under the Mental Health Act 1983 since 2017. She also complained that Miss C remained in an unsuitable placement with unmet needs for almost two years. Mrs B said the Trust failed to provide her sister with enough mental health support and when acting on behalf of the Council and the CCG. She said the alleged faults had adverse impact on her sister’s wellbeing and caused Mrs B avoidable distress. We found fault by the Council and the CCG in the way they stopped paying for accommodation which should have been provided without charge. This led to Mrs B having to support her sister with financial matters and this could have been avoided. Delays by the Trust led to Miss C remaining in an unsuitable placement for longer than she should have reasonably expected without enough mental health support in place. This is likely to have impacted on her wellbeing. To remedy the injustice the authorities agreed to our recommendations and will apologise to Miss C and Mrs B in writing and make acknowledgement payments. They will review their policies and procedures to ensure they are in line with relevant law and good practice. They will also ensure their staff act in accordance with legislation and established good practice.

The complaint

  1. The complainant, who I shall refer to as, Mrs B, complains that Luton Borough Council and Bedfordshire (the Council) and Luton and Milton Keynes Clinical Commissioning Group (the CCG) failed to ensure her sister, Miss C, received the Section 117 aftercare she was entitled to which included accommodation. Mrs B says, the accommodation provided did not meet her sister’s needs from 2018 and later the Council stopped paying for the placement as section 117 aftercare. This resulted in her having to claim housing benefit from July 2020 when her accommodation should have been provided without charge. Furthermore, the complainant says Luton CMHT and Bedford CMHT, which comes under East London NHS Foundation Trust (ELFT), failed to ensure her sister’s mental health needs were met in line with the Mental Health Act 1983 and did not involve family representatives in her sister’s care arrangements. She also says ELFT failed to ensure her sister’s needs were met when acting on behalf of the Council and the CCG.
  2. The complainant says the events had an adverse effect on her sister’s mental wellbeing and caused the complainant avoidable distress and worry as well as time and trouble in pursuing a complaint.

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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 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))
  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)

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How I considered this complaint

  1. I have considered information provided by the complainant and from the authorities complained about. All parties had an opportunity to respond to a draft of this decision.
  2. I considered the responses to the draft decision before reaching a final decision.

Legal and administrative context

  1. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. Usually, three professionals need to agree that the person needs to be detained in hospital. These are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has been specially approved in Mental Health Act detentions and another doctor. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person and their nearest relative about this. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
  2. 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.
  3. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47 and 48 of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
  4. The Code of Practice to the Mental Health Act says:

“CCGs and local authorities should interpret the definition of after-care services broadly. For example, aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition... As well as meeting their immediate needs for health and social care, aftercare should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.

  1. Luton Borough Council (LBC) and Luton CCG have a written protocol in place for Section 117 aftercare under the Mental Health Act 1983. The document specifies the protocol agreed between the Council and the CCG and describes how it is implemented across the Luton area. The document says, ‘People who receive services under S117 will not be financially assessed or charged by LBC and the cost of these services will be met jointly by LBC and Luton CC on a 50/50 funding split. This will avoid funding disputes which may lead to a delay in discharge from hospital or care being detrimentally affected.’

A later part of the document says, ‘Neither the CCG nor LBC will unilaterally withdraw from an existing funding arrangement without a joint reassessment of the person and without first consulting one another and informing the person about the proposed change in her arrangement. Any proposed change should be put in writing to the person by the organisation proposing to make such a change.’

  1. A reported court case set out the criteria for when housing will form part of aftercare. The judge in the case said housing is a common need and for it to be an aftercare need, it had to be ‘accommodation plus’. This means it had to be specialist housing to meet a need arising from the person’s mental disorder: the person’s need for accommodation must be over and above everyone else’s common need for shelter. (Mwanza v LB Greenwich)
  2. 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. People under the 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). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.
  3. The Trust has a CPA policy in place which details the criteria for a service user being on a CPA and the criteria for non-CPA service users.
  4. Housing Benefit is a means-tested benefit for people living in rented accommodation. A person can only get housing benefit if certain conditions are met. People living in supported accommodation that includes care can apply for housing benefit.

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What I found

Background

  1. Miss C has a long history of mental health illness which has resulted in detainment under the terms of section 3 of the Mental Health Act 1983 (MHA). Mrs B, her sister, says Miss C is keen for her family to have an active role in her care and support arrangements. This includes Miss C’s adult daughter and Mrs B.
  2. Miss C went into hospital in September 2016 under section 3 of the MHA. Mrs B said the family provided input into Miss C’s care plan from around December as they were preparing for her discharge.
  3. In March 2017 Miss C was discharged from hospital and was placed in residential accommodation in Bedford. Mrs B said this was because there was no suitable residential accommodation located in Luton. The Council and the CCG confirmed Miss C’s entitlement under section 117 includes aftercare to meet her accommodation, social and health needs. They agreed a 50/50 funding split for the placement, ‘Home X’, as an out of borough placement. The Trust had delegated authority to manage the placement.
  4. When the Council and the CCG placed Miss C at Home X it was registered as a residential home with the Care Quality Commission. It provided services to residents with needs which included mental health needs.
  5. When Miss C moved out of area the management of her mental health care transferred from Luton Community Mental Health Team (CMHT) to Bedford CMHT. Both CMHTs fall under the responsibility of the Trust. Mrs B said the family provided information to Bedford CMHT to incorporate into Miss C’s care plan.
  6. Miss C was admitted to hospital again in October for a short period but returned to Home X as part of her section 117 aftercare plan. Around September 2018, Home X changed its registered care home status to supported living registered with the CQC.
  7. Between April and May 2019, Miss C experienced breakdown in her mental health and this resulted in her detainment under section 3 of the MHA. The Council said Miss C remained entitled to section 117 aftercare on discharge to provide for her social, housing and health needs.
  8. Mrs B said Home X did not allow return Miss C to the placement when she was due to be discharged from hospital Home X because of a debt for accommodation costs it was owed. Mrs B said the debt owed amounted to £20,320 and became due after Home X had changed its status from residential care home to a supported living placement. She said the Council had stopped paying for the accommodation costs. Mrs B provided an extract of a letter she wrote to the Council.
  9. The Council said it was told in June 2019 that Home X de-registered from a residential service to a supported living service. It said Home X had continued to charge it for accommodation costs. The Council said as Home X was now a supported living provider accommodation costs needed to be claimed via housing benefit while it would pay the care and support costs.
  10. The Council said it advised the metal health social worker individuals would need to be supported to claim housing benefit. It said Miss C was supported by the supporting housing staff at Home X to make claims for benefits. It also said it looked at short-term mental health placements in December 2019 to ensure individuals were reassessed to determine that the placement was appropriate for their needs.
  11. Mrs B said the Trust completed routine placement reviews near the start of 2020. She said the reviews confirmed the reduced level of service at Home X and should have identified some residents were not getting the care appropriate to their needs. The Council and the CCG said they paid the accommodation costs until February 2020 although the status of the placement had changed earlier.
  12. Mrs B received an email from the Registered Manager of Home X in July. The email confirmed Home X would not provide support with financial matters to its tenants. It urged Mrs B to look into the matter as soon as possible.
  13. Mrs B provided a chronology to show the contacts she made with the Council, the CCG, and the Trust about her sister’s placement throughout 2020. She said she applied to the out of borough local authority for housing benefit, but the Council would not confirm to the out of borough authority it had stopped paying for her sister’s accommodation costs. Mrs B said she then complained to the Trust.
  14. The Trust said it applied to the Council’s Brokerage Team to source a different placement for Miss C. Mrs B said her sister wanted to move to residential accommodation. Information provided by the authorities complained about suggests Home X did not meet Miss C’s needs since the status of the placement changed to support living.
  15. In October 2020 Mrs B said the out of borough local authority confirmed Miss C’s entitlement to housing benefit and backdated the claim. The Trust said it, as well as Mrs B, coordinated communication between the Council and the out of borough authority’s benefits team.
  16. At the end of October, the Trust completed a CPA meeting with Miss C. The meeting was face-to-face and was not attended by Miss C’s care coordinator who was on leave. Mrs B said she was not invited to the meeting. A support worker from Home X attended the CPA meeting. The notes of the meeting stated the care coordinator did not provide information for the CPA. The document noted the following about Miss C:
    • she had capacity to make decisions regarding her care and treatment.
    • there was no imminent risk of self-harm, suicide, or harm to others.
    • she engaged in her treatment plan and felt positive about her health.
    • she was compliant with medication.
    • she was hoping to move to a new placement and had a viewing the next day.
  17. The report said, ‘a staff member will be allocated to complete transfer paperwork for [Miss C] to be transferred to the non-CPA team as she is under 117 aftercare and does not require a care coordinator any longer…’
  18. Mrs B referred to another video meeting which took place on 10 November and provided documentary evidence. The document provided refers to this meeting being a medical review. Mrs B said the meeting went ahead although Miss C could not attend due to technical problems.
  19. Miss C moved to a new placement near the end of November. The placement provided residential care rather than supported housing. Mrs B said her sister remained concerned about her view the authorities made decisions about her care and treatment which she did not properly understand. Mrs B said she prepared letters for Miss C to sign which meant Mrs B could act as her next of kin and a family member and support staff could be present at her assessments and reviews.
  20. The Trust arranged another medical review in February 2021. Mrs B said both she and Miss C’s daughter were prevented from attending as the organiser changed the login details for the online meeting. The Trust later told Mrs B that Miss C did not always want her to attend reviews. It provided a telephone record relating to the February meeting where it had recorded Miss C’s comments.
  21. At the new placement Miss C experienced relapse in her mental health and was detained under section 3 of the MHA for a period. Mrs B said she did not return to the placement but has since moved somewhere else.
  22. Following her complaints to the Trust Mrs B then complained to the Ombudsmen about her sister’s care and support arrangements.

Findings

How the authorities dealt with Miss C’s entitlement to section 117 aftercare

  1. The Council, the CCG and the Trust accept that Miss C has remained entitled to section 117 aftercare since she was discharged from hospital in 2017. They also confirmed Miss C’s entitlement to section 117 includes aftercare to meet her accommodation, social and health needs. These aftercare services should be provided without charge.
  2. The Council’s and the CCG’s written protocol says people who receive
    section 117 aftercare services will not be financially assessed or charged by the Council. Section 117 aftercare services will be jointly funded by the Council and the CCG as agreed on a 50/50 funding split.
  3. The Trust on behalf of the Council and the CCG assessed that Miss C needed residential accommodation to meet her needs arising from a mental health disorder. This was why she moved to Home X as part of her section 117 aftercare plan.
  4. When Home X changed its status from residential care to supported living the Council said it and the CCG were no longer responsible for the accommodation costs. This is fault. The Council said a different charging policy applied. This is fault. While this statement may have been correct for those individuals not entitled to section 117 aftercare accommodation it should not have applied to Miss C.
  5. Miss C’s entitlement to section 117 accommodation to meet her needs arising from her mental disorder did not change when Home X became a supported living provider. Section 117 of the MHA does not stipulate that aftercare cannot be provided for supported living accommodation. The Council and the CCG did not act in line with the MHA and their joint section 117 protocol and are at fault.
  6. When accommodation is part of a person’s section 117 aftercare, it must be free to the person. The Council and the CCG should not advise people to claim benefits such as housing benefit to pay for accommodation that is part of their section 117 aftercare. Housing benefit is means tested and Miss C would have needed to be financially assessed to qualify. Miss C remained entitled to section 117 aftercare and should not have been financially assessed to meet her accommodation charges.
  7. The information Mrs B provided as input into Miss C’s care plan said she ‘frets about being able to pay bills and worries that changes to benefits will affect her’. It likely this situation caused Miss C avoidable distress and possibly had adverse impact on her mental health. It is unclear whether Miss C had to contribute from her personal expenses to the cost of the accommodation charges.
  8. The evidence available shows the process of claiming housing benefit during the period complained about was a stressful experience for Mrs B which continued over several months. It is likely she experienced avoidable distress and frustration because of the faults.
  9. It is unclear whether the Council has applied its charging policy to other individuals living in supported accommodation who are entitled to accommodation as part of their section 117 aftercare plan.

How the change in Home X’s status impacted on Miss C’s needs

  1. When Miss C was discharged from hospital in 2017, she needed residential care to meet her needs. When Home X changed its status to supported housing the amount of support she received also changed and became less.
  2. In response to Mrs B’s complaint the Trust said it liaised with Miss C’s family and completed a review because Miss C was struggling to cope with her mental health and care needs. The review found the placement was not meeting
    her needs in areas such as personal care, managing medication and preparing meals.
  3. I have not seen what efforts the authorities made to move Miss C from Home X when it changed its status in 2018. The review completed in 2019 and 2020 did not properly record the impact on Miss C or highlight the need for her to move. This is fault. This means Miss C remained in an inappropriate placement for about two years. It is more likely than not that her needs were not met in this placement from the date the status changed to supported living to when she moved to a new placement.

The mental health support provided by the Trust

  1. The documentary evidence considered does not show the Trust provided support in line with the CPA. For example, the recovery care plans provided for 2019 and 2020 are identical in content and suggests the Trust did not properly consider Miss C’s needs and care and support arrangements properly.
  2. The care plans do not reference information which would have been relevant at the time of the assessment. This includes issues Miss C was having with housing benefit and the impact on her mental health in the placement because it was not meeting her needs. Under accommodation goals the form does not note any issue with accommodation or change in funding it also does not record any issues with finance. This is fault.
  3. The Trust also decided to discharge Miss C from the CPA and one of the reasons cited was because she was entitled to section 117. During the period it discharged Miss C from the CPA it was aware her needs were not being met in the placement and that this was having adverse impact on her mental health. This does not show proper consideration when the Trust made the decision.
  4. The Trust has not said what clinical standard or established good practice it followed when deciding Miss C could be stepped down to the non-CPA team. Because of this I cannot say it properly made the decision. It is likely Miss C missed out on a comprehensive assessment of her health and social care needs the CPA should have provided. Mrs B confirmed Miss C experienced relapse in her mental health after moving to the new placement and was detained under the MHA. This suggests her mental health was not stable.

Mrs B and Miss C’s daughter involvement in her care and support arrangements

  1. Mrs B said the Trust and the Council have consistently failed to involve her and Miss C’s adult daughter in her care and support arrangements. She also said when Miss C becomes mentally unwell, she can sometimes express views which are not in her best interests. This includes saying she may not want Mrs B or her daughter involved. However, Mrs B says both she and Miss C’s daughter have always played an active role in her sister’s life and are keen to ensure her best interests.
  2. When responding to Mrs B’s complaint the Trust said Miss C had asked for family members not to be involved in her CPA review meetings. The Trust provided a note in its records relating to a meeting in February 2021. The notes suggest
    Miss C did not want Mrs B or her daughter to attend this meeting.
  3. A person is presumed to have capacity to make specific decision unless there is reason to believe they may lack capacity. A mental health illness does not mean a person lacks capacity to make specific decisions. Miss C should be supported to express her individual although there may be times when she welcomes the support of her family at meetings. I have not seen evidence to show the authorities always offered Miss C the support of an advocate, but I can appreciate there is a need to balance this with Miss C’s independence and choices.
  4. The authorities and Mrs B, as well as other family members, should agree the best approach in consultation with Miss C and whatever her wishes are now.

Conclusion

  1. There is fault in the way the Council and the CCG decided to apply a different charging policy when Miss C’s section 117 aftercare accommodation changed its status from residential care to supported housing. This is likely to have caused distress to Miss C and her sister Mrs B when they had to apply for benefits although Miss C was entitled to accommodation without charge or financial assessment.
  2. It is also likely Miss C remained in a placement which did not meet her needs for longer than she should have reasonably expected because of delays by the Trust to arrange a new placement. This is likely to have had an adverse effect on her wellbeing.
  3. Faults in the way the Trust decided to change the support it offered to Miss C is likely to have meant her health and social care needs were not properly considered at times when she experienced major change to her care and support arrangements.

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Agreed recommendations

  1. Within one month of the final decision, the Council, the CCG and the Trust will take the following action to remedy the injustice caused by the identified faults:
    • apologise collectively in writing to Miss C for the avoidable distress she experienced because of the faults. The apology should include an acknowledgement that she remained in an inappropriate placement for longer than she should have reasonably expected.
    • collectively pay Miss C £1800 to acknowledge the adverse impact on her wellbeing when she remained in an inappropriate placement over a significant period. The Council and the CCG will pay Miss C an additional £300 to acknowledge the distress she experienced when the Council and the CCG stopped paying her accommodation charges.
    • determine whether Miss C contributed to the costs of her care and refund any rent, council tax and service or utility charges she may have paid if necessary.
    • apologise in writing to Mrs B for the avoidable distress and frustration she experienced because of the faults.
    • pay Mrs B £500 between them to acknowledge the impact the faults had on her and for her time and trouble pursing this complaint.
  2. Within three months of the final decision:
    • the Council will complete a review and determine whether any other residents at Home X remained entitled to section 117 aftercare accommodation but had to claim housing benefit. It will decide whether they have any out-of-pocket expenses such as rent, council tax and service or utility charges and refund them accordingly. It will also let the Ombudsmen know the outcome of the review.
  3. To prevent similar problems in future, and within three months of the final decision, the Council, the CCG and the Trust will ensure:
    • all relevant policies and procedures make it clear the duty to pay for accommodation which is part of section 117 aftercare lies with the relevant council and CCG, and that residents and patients should not be asked to claim Housing Benefit instead;
    • all staff whose responsibilities may include administering, commissioning, assessing for or providing section 117 aftercare have knowledge of the relevant law, guidance and policy, as appropriate to their roles; and
    • they provide evidence to the Ombudsmen that this has been completed.

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Final decision

  1. I uphold Mrs B’s complaint about the Council, the CCG and the Trust. There is fault causing injustice. The authorities have agreed to our recommendations and this remedies the injustice caused. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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