Summary: Miss X complains she was left without suitable care and support between April 2021 and October 2022. The Council has accepted Miss X was eligible for section 117 aftercare services under section 117 of the 1988 Mental Health Act during this period and was left without care and support. This was fault. The Council and Integrated Care Board have agreed to apologise, make a financial payment and provide evidence of service improvements to remedy the injustice caused.

The complaint

1. Miss X complains she was left without suitable care and support between April 2021 and October 2022. She said she was eligible for aftercare services under section 117 of the 1983 Mental Health Act throughout this time.
2. Miss X says she has missed out on provision she was entitled to, and this has impacted her health and wellbeing and caused her significant distress.

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The Ombudsmen’s role and powers

3. 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)
4. 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))
5. 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

6. I considered the information provided by Miss X and discussed the complaint with her. I made enquiries of Cheshire West & Chester Council and Cheshire and Merseyside Integrated Care Board (ICB) and considered the responses I received.
7. Miss X, the Council and ICB had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Relevant legislation and guidance

Integrated Care Boards

8. On 1 July 2022, NHS England introduced an integrated care system with the implementation of Integrated Care Boards (ICBs) who are responsible for managing the local NHS budget and arranging for provision of health services in local areas. The establishment of ICBS resulted in the closure of Clinical Commissioning Groups (CCG).
9. Cheshire and Merseyside CCG shared a joint statutory duty to provide or arrange Cheshire and Merseyside ICB.
10. For ease of reference and consistency, I have referred to the ICB throughout this decision statement rather than its predecessor organisation the CCG.

Councils

11. The responsible local council is the one in which the person was ordinarily resident immediately before they were detained under the Mental Health Act 1983 (MHA).
12. There is no fixed definition of ordinary residence. The Care and Support Statutory Guidance accompanying the Care Act 2014 applies the principle that a person’s ordinary residence is the place that a person has voluntarily adopted for a settled purpose, whether for a long or short duration.

Mental Health Act 1983

13. Under the MHA, 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 under section 3 of the MHA is for the purpose of providing treatment. This is sometimes known as ‘being sectioned’. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare. Section 117 aftercare services must:

• meet a need arising from or related to the mental disorder for which the person was detained; and
• aim to reduce the risk of the person’s mental condition worsening and them having to go back to hospital for treatment.

14. The “Mental Health Act 1983 Code of Practice” (the Code) is statutory guidance. This means that councils and ICBs must follow it, unless there are good reasons not to. The Code says section 117 aftercare can include supported accommodation. Aftercare services continue for as long as the person needs them.
15. Section 33.7 of the Code says that Councils and ICBs must keep a record of people for who they provide or commission aftercare and what aftercare services are provided.
16. The Code says that aftercare planning needs to start as soon as a person is admitted to hospital. Councils and ICBs “should take reasonable steps” to ensure aftercare services are in place in good time for discharge. The care plans should specify that the person is entitled to section 117 aftercare and state which services will be provided.
17. Section 117 aftercare can incorporate a wide range of services, including (but not limited to):

• medication administration;
• social work;
• domiciliary care;
• psychiatric treatment;
• residential accommodation; and
• supported living or extra care housing.

Memorandum of understanding between the Council and ICB

18. The Memorandum was implemented in March 2022 and sets out the arrangements for section 117 aftercare in partnership with the Council and ICB.
19. Prior to the implementation of the Memorandum, the Council and Cheshire and Wirral Partnership Foundation Trust were responsible for alerting NHS Cheshire and Merseyside to new admissions for people who would requires section 117 aftercare following discharge from hospital.

Care Programme Approach

20. 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).

What happened

21. This is a chronology of what happened from March 2021 to October 2022. It does not detail everything happened.
22. Miss X has a long history of mental health illness. Miss X received twenty-four hours support every day. This was agreed and commissioned by the Council and the ICB.
23. In March 2021, Miss X attempted suicide and was admitted to hospital.
24. Miss X had concerns about her care provider and in early April, she terminated the care package. This care package was jointly funded by the Council and ICB.
25. On 23 April, a professionals meeting took place to discuss Miss X’s care. The meeting was attended by the Council and ICB. The minutes of the meeting noted the following:

• Miss X had been without care and support for two weeks and was at high risk of falling and sustaining an injury. Miss X had attended hospital a few times after hitting her head because of falling;
• no other twenty-four hours providers had been identified and this was deemed no longer appropriate. The Council had identified three agencies which could support Miss X on a 2 to 1 basis once a week for personal care and once a month for food shopping; and
• the Council would speak to Miss X about direct payments or employing a personal assistant to assist her.

26. In May 2021 the Council completed a reassessment of Miss X’s needs. The Council recorded that Miss X used a wheelchair. Miss X said since terminating her care package she had been managing alone and there were aspects of daily living she was finding challenging. Miss X said she struggled physically but was able to use public transport independently. Miss X said she had managed some aspect of her mental health, however her physical health issues were impacting on her emotional wellbeing. Miss X said she wanted twenty-four hours support every day, which would enable her to live her life meaningfully.
27. The Council noted that Miss X was subject to section 117 aftercare and assessed Miss X as requiring four hours support every day. This was never implemented, as the Council experienced difficulties in sourcing a care provider.
28. On 15 May, telecare provision commenced for Miss X. This was jointly funded by the Council and the NHS.
29. In June, the NHS completed an assessment of Miss X’s needs. Miss X said she wanted twenty-four hours support every day. However, the Council’s assessment did not support this and MDT agreed. Miss X was advised that a provider had been identified and could provide domiciliary care every other day for eight hours in total. The care would be jointly funded under section 117 aftercare to enable discharge from hospital and maintain Miss X in the community.
30. On 15 July, the provider said that due to a company restructure it could no longer support Miss X. The records show communication between the Council and the NHS about difficulties in sourcing another provider.
31. On 7 August, Miss X was admitted to hospital. A care provider was identified and agreed to provide care to Miss X on discharge subject to conditions. Miss X declined the care package.
32. The Council raised a safeguarding referral following a dispute between Miss X and her neighbours.
33. Two weeks later Miss X attempted suicide and was supported by emergency services.
34. On 4 September, Miss X was admitted to hospital.
35. On 30 September, a CPA meeting took place. Miss X attended this meeting. It was noted that Miss X was settled with no current issues or concerns with her mental health and appeared to mobilise independently without any aids. Miss X had been assessed as not detainable and was an informal patient. Miss X said she had found a property in another area.
36. On 17 December, Miss X discharged herself from hospital. Miss X was referred to the home treatment team and provided with contact details for the crisis team.
37. A professionals meeting was held on the same day. The Council said it had identified three nursing providers and was waiting for a response. The Council said Miss X had left distressing messages and repeated “I don’t understand why you can’t find support; you have had since April this year and I don’t know if I can take this anymore”. Hospital staff had told Miss X that a care package had not been arranged. Miss X said her mum would support her with shopping. Miss X said she would deteriorate if she stayed on the ward.
38. Miss X complained to the Council about the lack of care and support she had received since April 2021, including a failure to provide section 117 aftercare.
39. On 7 October 2022, the Council commissioned 30 hours of double handed care (equivalent to 60 hours) per week for Miss X. This was jointly funded with the ICB. Double handed care is where more than one carer is provided on each visit to someone to deliver personal care to that person in their home.

Miss X’s complaint to the Ombudsman

40. I have listed below the main issues of Miss X’s complaint as follows:
1. she had received no social care support since her previous care package ended in April 2021;
2. the Council decided she needed four hours care per day, but this had not been implemented;
3. the Council had failed to provide section 117 aftercare following her discharge from hospital; and
4. a social worker made allegations of crime about Miss X assaulting care staff, said Miss X was pretending to be disabled and chose to use a wheelchair.
41. Miss X said the lack of care and support affected her physical and mental health. She struggled to cope and suffered a loss of dignity as family and friends were trying to help her with her personal care. Miss X said she attempted suicide several times and was admitted to hospital after a psychotic episode.

The Council’s response to our enquiries

42. The Council acknowledged that Miss X was left without suitable care and support between April 2021 and October 2022. The Council has confirmed that Miss X was eligible for section 117 aftercare during this period and her eligible needs were not met. The Council offered to apologise to Miss X and pay her £500 for the injustice this caused her.
43. The Council explained that in May 2021 it sought information from its health partners and other agencies as part of Miss X’s reassessment and attempts to source a new care provider. The Council’s records stated that Miss X had shown “aggression towards staff during restraint situations, or whilst attempting to abscond”. It was noted that when in hospital Miss X attempted to leave the ward and picked up a small table and “staff were concerned she would use this against others”.
44. The Council confirmed that a care plan that clearly setting out Miss X’s section 117 aftercare had been implemented. The Council said it was working on improving and developing its approach to section 117 aftercare, as follows:

• prioritise attending CPA meetings led by the NHS, as and when invited;
• ensure section 117 aftercare plans are available on each section 117 case and reviewed in a timely fashion;
• a phased implementation of a new section 117 aftercare plan from April 2023; and
• staff training on section 117 cases.

The ICB’s response to our enquiries

45. The ICB told us that it had received no prior complaint from Miss X in relation to her section 117 aftercare. It said Miss X was re-referred to the former CCG in August 2018 and had been on its active caseload since this date.
46. The ICB has acknowledged that it has a joint responsibility to ensure appropriate aftercare services were in place for someone who met the criteria for section 117 aftercare. In this case, the ICB were involved in the provision of support provided to Miss X prior to admission and after discharge from hospital and care was jointly funded with the Council.

Analysis

47. Getting section 117 aftercare right is vital to support people recovering from a mental health crisis. It is to ensure they receive the care they need to continue their recovery and prevent future decline in their mental health condition.
48. The Code is clear that aftercare planning should begin as soon as the person is admitted to hospital. This is to ensure appropriate services are identified and put in place in good time for their discharge.
49. Miss X was eligible for section 117 aftercare as she had been detained under section 3 of the MHA. As set out by the Code, the statutory duty to provide or arrange these services rested with the Council and ICB.
50. I acknowledge the efforts by the Council to source a new provider. I also acknowledge there was communication between the Council and ICB about section 117 aftercare. Miss X received telecare support from May 2021 to October 2022 and domiciliary care for approximately four weeks between June and July 2021. I recognise this was not a straightforward case particularly when Miss X moved out of area. It also did not help matters when Miss X refused a care provider in August 2021 and self-discharged in December 2021, knowing that care and support was not available.
51. However, Section 117 aftercare is a legal entitlement and even taking the complexity of the case into account, Miss X lost out on this support for about 17 months. Miss X was without vital care and support during this period. This was fault. I understand that Miss X was in hospital for about four months during this period and would have received some support, especially with her physical needs, however this is not the same as section 117 aftercare. This loss of entitlement and lack of provision has impacted Miss X’s health and wellbeing and the associated distress and frustration is an injustice.
52. Between April 2021 and October 2022, Miss X experienced mental health incidents causing herself physical harm or serious risk of harm, as well as difficulties in her relationships with her neighbours. We cannot say, even on the balance of probabilities, that the actual harm to Miss X and her relationships would have been less if the Council and the ICB had not failed to provide her with section 117 aftercare and social care and support needs. This is because there are too many unknown variables over the period in question. However, Miss X’s diagnoses and traumatic life experiences mean that she is exceptionally vulnerable to distress and physical harm. Her social interactions are also very vulnerable. We therefore consider the Council and ICB’s failure in managing Miss X section 117 aftercare are likely to have increased the risk of harm to her, her relationships and interaction with others.
53. I have no reason to doubt Miss X’s comments that she struggled to cope without any care and support for 17 months. Miss X suffered a loss of dignity as family and friends were trying to help her with personal care when she was at home. Miss X is justifiably outraged over being repeatedly failed by those responsible for providing her with care and support.
54. Since October 2022, Miss X has been receiving 30 hours of double handed care per week, jointly commissioned by the Council and ICB. The Council has confirmed that Miss X has a care plan that clearly sets out her section 117 aftercare.
55. Miss X also complained that a social worker made allegations of criminality about her assaulting care staff. I have considered the Council’s response to this as explained in paragraph 42. I understand that Miss X may disagree with these statements and find them upsetting to read, however I find no fault by the Council here.
56. Miss X said the social worker said she was pretending to be disabled and chose to use a wheelchair. Miss X specifically refers to safeguarding meeting held in November 2021, in which it is recorded that “Miss X chooses to use a wheelchair and identifies as disabled”. I have considered Miss X’s comments, and while I agree this was an unfortunate choice of wording, I cannot say this has caused Miss X a significant personal injustice.

Remedy

57. We look into complaints where someone believes they have been negatively affected (experienced an injustice or hardship) because an organisation has not acted properly or has given a poor service and not put things right. Where we find this is the case, we consider whether an organisation has already taken appropriate action to try to resolve the complaint. If we identify an organisation has not done so, we will usually make recommendations on how they can do this.
58. In deciding what to recommend, we look to put the person affected back into a position where they would have been, had there not been a negative impact on them. If this is not possible, for example where the injustice is distress or unnecessary pain, we may suggest a financial payment to the complainant instead. We do not have standard amounts that we suggest for specific failings as these may impact the person affected differently in different circumstances. We consider the individual facts of a case in deciding what level of financial payment is appropriate to recommend.
59. In this case, Miss X was left without care and support and section 117 aftercare services for 17 months. As explained above this has had a significant impact on Miss X, going beyond distress and inconvenience. I have made recommendations below to remedy this injustice.

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Agreed action

60. Within one month of my final decision the Council and ICB will:
1. apologise to Miss X in writing for the faults and service failure identified in this statement;
2. pay Miss X £1500 each in recognition of the lack of care and support between April 2021 and October 2022;
3. pay Miss X £250 each for the loss of legal entitlement to section 117 aftercare and the prolonged uncertainty this has caused;
61. Within one month of my final decision the Council will pay Miss X £200 to acknowledge her time and trouble in pursuing her complaint and the additional distress and frustration this caused her; and
62. Within two months of my final decision the Council will send the Ombudsman an evidence-based action plan of its progress towards the service improvements identified in paragraph 44.
63. The Council and ICB should provide us with evidence they have complied with the above actions.

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Final decision

64. We have completed our investigation finding fault by the Council and ICB causing an injustice to Miss X

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Investigator's decision on behalf of the Ombudsman