Summary: The Council was not at fault in the way it reached a decision not to carry out a retrospective funding assessment for aftercare funding for the late Mr X.

The complaint

1. A solicitor complains on behalf of the late Mr X (as I shall call him) that the Council refused to assess his eligibility retrospectively and posthumously for aftercare funding for the period 2020 – 2022 when he self-funded a care home placement.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

4. I have investigated the complaint as set out above. I have not investigated any involvement of the NHS in the aftercare arrangements as that is not in the jurisdiction of the Local Government and Social care Ombudsman.

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How I considered this complaint

5. I considered all the information provided by the Council and by the solicitor. I spoke to the solicitor. Both parties had the opportunity to comment on an earlier draft of this statement, and I considered their comments, before I reached a final decision.

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What I found

Relevant law and guidance

6. 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 1983 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 certain sections 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.
7. When someone needs residential care or specialist accommodation, this is only eligible for s117 aftercare if it meets a need(s) resulting from their mental disorder. S117 aftercare responsibility may end if the needs that were being addressed after the person became settled in a care home related to the person’s age and mental frailty rather than to the patient’s mental disorder.
8. The 1983 Mental Health Act replaced the 1959 Mental Health Act.

What happened

9. Mr X had a history of mental illness. He was compulsorily detained in hospital in March 1981 under section 26 of the 1959 Mental Health Act. The medical records show he was discharged in April 1981 with a psychiatric assessment that he would probably be fit to return to work by the end of the month.
10. In September 2019 Mr X was found at his home having fallen some days or weeks previously, unable to summon help. He had sepsis. The medical records say he had developed “psychotic delirium” as a result. He was assessed as needing 24-hour care and discharged from hospital to a care home placement in January 2020, which he funded himself. A letter to his GP after a psychiatric assessment in 2019 says that on discharge from hospital in 1981, Mr X had been “lost to follow up” and had no further contact with mental health services.
11. Mr X died in August 2022. His solicitor wrote to the Council in December 2022. She said that under section 6 of the 1959 Mental Health Act Mr X should have been entitled to aftercare funding. She said there was no record he had ever formally been discharged. She said as such he should have received funding for his aftercare and his placement between 2020 and 2022.
12. The Council sent its final response in August 2023. It said based on the evidence it had seen, it did not accept there were grounds for completing a retrospective funding application for Mr X.
13. The solicitor complained to the Ombudsman. She said the Council had failed to consider fully Mr X’s medical records in relation to his mental health and his care needs, despite the completion in 2020 of a CHC decision support tool (DST)which detailed his detention in 1981. She said the records showed Mr X had never been discharged from s6 (later s117) aftercare and the Council should therefore fund the residential placement which Mr X had funded himself between 202 and 2022.
14. The Council says the Mental Health Hospital Liaison Nurse saw Mr X during his September 2019 hospitalization and relayed that his recent delirium resulted from sepsis. Mr X was assessed as needing 24-hour care and was discharged with his consent to a care home on 13 January 2020, self-funding his placement. At that time, the Council had no records indicating Mr X was entitled to mental health aftercare services.
15. The solicitor says - in response to the Council’s point that it had no records about Mr X prior to 2019 - “The evidence was set out in the 2020 DST, that the council were party to, and as such they should have requested details of historical records from (Mr X)’s GP records, which would have been available to the council in 2019, just as they were available to [the] solicitors and referred to in our original complaint”.

Analysis

16. There is a dearth of records between Mr X’s hospital discharge in 1981 (after which he was said to be “lost to follow-up”) and 2019 when he was discovered at his home sometime after a fall, suffering from sepsis which appeared to cause delirium.
17. I do not see there is fault in the way the Council reached a decision in 2023 that there were no grounds for completing a retrospective funding application. Its Adult Services officers appropriately sought legal advice which the Council was entitled to rely on.
18. As 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”, and “when someone needs residential care or specialist accommodation, this is only eligible for s117 aftercare if it meets a need resulting from their mental disorder” it would not have been possible to reach a view after Mr X’s death that between 2020 and 2022 he was entitled to aftercare services relating to the mental disorder in 1981, nearly 40 years earlier.
19. It would have been helpful if the Council had responded more fully to the request from the solicitor. But I do not see that its failure to do so made any difference to the outcome here.

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Final decision

20. I have completed this investigation on the grounds there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman