Summary: Mrs J complained the Council failed to hold a discharge planning meeting and wrongly charged her for care after she was discharged from care under the Mental Health Act 1983. It was fault not to hold the meeting; the Council has already remedied the injustice caused by this. There was no fault in the charging for Mrs J’s care.

The complaint

1. Mrs J complained:
• She was wrongly detained under section 3 of the Mental Health Act 1983.
• There was no section 117 aftercare planning meeting or proper discharge from section 3 and no discharge plan.
• She was wrongly charged for six weeks care.
2. Mrs J says as a result of not having the section 117 meeting, she had no follow-up, support or regular visits from the mental health team, leaving her alone and scared and away from family. She wanted the Council to explain why it detained her and confirm in writing that she was not violent or aggressive. She also sought a refund for the six weeks of care.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. 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

10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. I am exercising discretion to investigate as Mrs J’s illness meant she was unable to bring a complaint until 2022. (Local Government Act 1974, sections 26B and 34D, as amended)
11. I am exercising my discretion set out in paragraph 7, to end my investigation into the decision to detain Mrs J under section 3 of the Mental Health Act. This is because the Approved Mental Health Professional (AMPH) who made the application was acting on behalf of a different local authority. In addition, Mrs J had a right to apply to the Mental Health Tribunal to be discharged. As set out in paragraph 6, the law says we cannot normally investigate when it would have been reasonable for someone to appeal to a tribunal. I consider it would have been reasonable for Mrs J, or her nearest relative, to have applied to the Tribunal to be discharged, if she considered she had been inappropriately detained.

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How I considered this complaint

12. I spoke to Mrs J about her complaint and considered the information she sent, Council’s response to my enquiries and:
• The Mental Health Act 1983 (“the Act”)
• The Mental Health Act Code of Practice
• The Care Act 2014
• The Care and Support (Preventing Needs for Care and Support) Regulations 2014
• The Care and Support (Charging and Assessment of Resources) Regulations 2014
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
13. I issued a previous decision on this complaint in July 2024. The Council carried out some of the agreed actions but there was new information so I re-opened my investigation.
14. Mrs J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Mental Health Act 1983

15. A person suffering from a mental disorder may be detained in hospital for assessment and/or treatment under the Mental Health Act 1983 (the Act). An application for detention under the Act can be made by an Approved Mental Health Professional (AMHP) supported by two medical recommendations.
16. An AMHP is a social worker or other professional approved by the local authority to carry out duties under the Act. An AMHP is considered to be acting on behalf of the local authority. This means complaints about an AMHP's actions fall under the jurisdiction of the Ombudsman.
17. A person can be detained under Section 2 of the Act for a maximum of 28 days to enable an assessment to be carried out in hospital. The purpose of detention under section 3 is to provide treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention can be renewed for another six months.
18. A person who has been detained under the Act has a right to apply to the Mental Health Tribunal to be discharged.
19. Whilst detained the person may be able to leave the hospital if authorised by the clinician in charge, for example to receive treatment for a medical condition. This is known as "section 17 leave".
20. A person can be discharged from the Act by a responsible clinician. They will also be discharged if the section runs out and it is not renewed. After discharge, people may agree to stay in hospital as a voluntary or informal patient.

Section 117 aftercare

21. Under section 117 (s117) of the Mental Health Act 1983, councils and NHS commissioners have a joint duty to provide or arrange free aftercare for people who have been detained under certain sections of the Act.
22. Aftercare services must meet a need arising from or related to the person’s mental health disorder and reduce the risk of their mental health condition worsening and the need for another hospital admission again for the mental health disorder. The duty to provide aftercare services continues as long as the patient needs such services.
23. Care planning for s117 aftercare should be done via the Care Programme Approach, which is an overarching system for coordinating the care of people with mental health conditions. Under this approach, people should have:
• a comprehensive assessment of their health and social care needs;
• a care coordinator;
• a care plan to show how their needs will be met; and
• a review of the plan by a multi-disciplinary team.

The council takes the lead on the assessment and commissioning care and support.

24. Before the person is discharged from hospital, there should be a care and support assessment. There should also be a meeting to plan the person’s aftercare. The care plan should specify that the person is entitled to s117 aftercare and detail which services will be s117 funded. If a person is not eligible for s117 aftercare, they may have to contribute towards the cost of their social care.

Mental capacity

25. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. If the person lacks capacity to make decisions about their care, a best interest decision must be made in line with the Mental Capacity Act 2005. A referral to an independent mental capacity advocate may be required in certain cases.

Intermediate Care and Reablement

26. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently.
27. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing to provide them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Care and support

28. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
29. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
30. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. The Guidance and charging regulations state that people who have capital over the upper limit (£23,250) are expected to pay the full cost of their care. They are known as “self-funders”.

What happened

31. Mrs J lived in the Council’s area. She was admitted to hospital in 2019. It was felt she needed psychiatric care so she was transferred to a psychiatric ward in a neighbouring council area. The Council says Mrs J agreed to informal admission and treatment.
32. Mrs J’s condition deteriorated. She was assessed by the AMHP on behalf of the neighbouring council who applied for her to be detained under section 3 to enable treatment to continue.
33. Unfortunately Mrs J continued to deteriorate and had to be cared for in bed. She was transferred to a medical ward for treatment of a medical condition. During this period, Mrs J was diagnosed with a brain condition, so her condition was determined to be organic rather than psychiatric. She remained an informal patient in the psychiatric unit whilst on leave for treatment for the medical condition.
34. There is a case record by the local NHS mental health trust on 23 May 2019 which says that contact was made with the Council’s AMHP to arrange a s117 discharge planning meeting, as Mrs J had been discharged from section 3 and would now be discharged from the psychiatric ward.
35. The case note says that the AMHP advised that “a s117 meeting is not required before discharge from [the psychiatric] ward. [Adult Social Care] will remain responsible for Mrs J’s aftercare needs and this will be assessed at the appropriate time.” The Council says a s117 aftercare planning meeting would normally have been undertaken, however Mrs J was still extremely unwell and would have been unable to engage in it.
36. Mrs J was then discharged from the psychiatric ward and remained on the medical ward. The medical ward arranged a best interest meeting in June 2019 to consider Mrs J’s placement after she was discharged from hospital. Mrs J was discharged from hospital to a rehabilitation unit in the Council’s area in August 2019.
37. The rehabilitation unit made a referral to the Council. This said Mrs J had a medical condition and would require some support and extra care housing. There was no reference to s117 aftercare.
38. The Council’s case records show that between November 2019 and January 2020, the social worker discussed with Mrs J and her family what her options would be once she was discharged from the rehabilitation unit. It was felt she would require short-term reablement support and intermediate care and that extra care housing would be appropriate. Mrs J was selling her home and wanted to move to a different part of the country to be near family but no extra care housing was available there at the time. An extra care property in the Council’s area became available and Mrs J moved in on 24 February 2020.
39. The Council assessed Mrs J’s care and support needs between 17 and 21 February. This found she had mobility problems and in the short term needed help to leave her flat to get the main meal provided by the care provider. She also needed visits in the morning and evening to help with meals and personal care. The Council commissioned the property’s care provider to visit for a total of 19.25 hours per week for up to six weeks. There would be a review in four weeks. Reablement support would be provided by the community reablement occupational therapist who visited Mrs J on 4 March.
40. The OT’s assessment says Mrs J was aware that, following the six-week period of reablement, she would need to fund her own care and support as she had been assessed as having the means to pay for her own care following the sale of her property.
41. There was a review by the OT on 24 March. This found Mrs J’s independence had increased and she had gradually reduced the number of care calls. It was agreed that the last intermediate care call would be on 29 March. Mrs J said after this she would fund two 15-minute calls each day. Mrs J has sent evidence that she was invoiced by the care provider from 29 March 2020.

Mrs J’s complaints

42. Mrs J complained to the NHS in September 2022 about the treatment she had received when she was sectioned. Mrs J considers she should not have been detained under section 3 as there was no diagnosis of her condition at that point. She says the treatment was therefore inappropriate, causing distress and for her to deteriorate. She also complained about the lack of discharge planning.
43. The NHS sent the element of the complaint about the AMHP’s role to the Council and the Council contributed to the NHS complaint response in December 2022. The Council apologised there had been no s117 discharge planning meeting. It offered to meet Mrs J to discuss.
44. Mrs J replied asking to meet but there was no further correspondence until the Council sent another complaint response on 23 October 2023. This said the care provided after Mrs J was discharged from hospital followed an in-patient stay for a physical health issue. As it was not related to mental health care, it was not s117 aftercare.
45. Mrs J came to the Ombudsman. She said whilst her supported accommodation was suitable, she was isolated from her family. This was a consequence of not having had a s117 planning meeting, where issues such as the best location and support she needed would have been discussed.
46. Following our first decision on this complaint, the Council met with Mrs J in July 2024 to complete the s117 discharge planning process. It was agreed at the meeting that Mrs J did not have a mental health condition and did not require health or social care support to reduce the risk of readmission to a mental health hospital. She therefore did not meet the criteria for s117 aftercare. The Council also apologised to Mrs J for delays in complaint handling.

My findings

47. The Council has accepted fault, as there was no s117 discharge planning meeting in 2019. I note that Mrs J was too ill to engage in one in May 2019 but I consider a meeting should have been held before she was discharged to extra care housing in 2020. The lack of a meeting at the time has caused Mrs J distress and concern about whether matters were dealt with and funded properly.
48. The Council has already remedied this injustice by meeting with Mrs J in July 2024 to discuss what happened and complete the process. It also wrote to her to explain why she was detained and to confirm that she had not been violent or aggressive.
49. The Ombudsman is not a relevant person under the Act, so I cannot determine whether Mrs J had a mental disorder or required s117 aftercare. That is for the responsible clinicians to determine. I have seen no evidence of fault in the way the decision was made in July 2024 that Mrs J did not meet the criteria for s117 aftercare.
50. As Mrs J had a physical health condition and her health was improving, on balance I consider it more likely than not that if a s117 discharge planning meeting had been held by February 2020, it would have also concluded that she did not require s117 aftercare. This means there was no fault when the Council did not fund Mrs J’s care and support or extra care housing costs as s117 aftercare.
51. The Council funded the care agency to provide intermediate care from 24 February to 29 March 2020. This is in line with the “preventing needs for care and support” regulations.

52. The OT’s reablement review of 24 March 2020 does not say whether Mrs J continued to have eligible care and support needs, but even if she had, Mrs J would have been a self-funder following the sale of her property. There was no fault, therefore, in Mrs J funding her own care after 29 March 2020.

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Final decision

53. There was fault causing injustice which the Council has already remedied. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman