The Ombudsman's final decision:
Summary: Faults by the Trust, Council and CCG led to Mrs X paying for accommodation which should have been free section 117 aftercare. Faults by the Council in dealing with Ms X’s enquiries and complaints caused her unnecessary time and trouble. The Council has already offered a fair remedy for Ms X’s injustice. The Trust, Council and CCG have accepted the Ombudsmen’s recommendations for service improvements and to address the injustice to Mrs X. We have therefore completed our investigation.
- The complainant, whom I shall call Ms X, complains that:
- delays by London Borough of Lewisham (the Council), South London and Maudsley NHS Foundation Trust (the Trust) and Lewisham Clinical Commissioning Group (CCG) have led to delays in the Council and CCG paying for sheltered accommodation which should be provided free for her mother (Mrs X) under section 117 of the Mental Health Act 1983;
- the Council and CCG are failing to pay for the accommodation’s service and utilities charges as part of section 117 aftercare; and
- the Council has delayed responding to Ms X’s attempts to resolve the matter.
- the security of Mrs X’s tenancy has been affected and Mrs X has had to spend over £14,000 from her own account to meet rent demands since April 2018;
- Ms X has had to spend unnecessary time and trouble in trying to resolve the problem and has now lost all confidence in the Council.
- a refund for Mrs X;
- for the Council to set up regular payments for Mrs X’s accommodation, service and utilities charges as part of Mrs X’s section 117 aftercare; and
- an apology for Ms X.
The Ombudsmen’s role and powers
- 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, as amended, and Health Service Commissioners Act 1993, section 18ZA)
- 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), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- 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)
How I considered this complaint
- When considering this complaint, I have taken into account:
- information Ms X has provided in writing and by telephone;
- the Trust’s written response to my enquiries and supporting documentary information; and
- the Council’s written response to my enquiries, sent on behalf of the Council, Trust and CCG and supporting documentary information.
What I found
Key legislation and guidance
- 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’. Section 3 of the Mental Health Act is for providing treatment. People discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- Section 117 of the Mental Health Act imposes a duty on NHS clinical commissioning groups (CCGs) and council social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients detained under specific sections of the Mental Health Act (e.g. Section 3). Section 117 aftercare also applies to people on Community Treatment Orders (CTOs) and can apply to people granted leave from hospital under section 17 of the Mental Health Act.
- Section 117 aftercare services must:
- meet a need arising from or related to the mental disorder for which the person was detained; and
- have the purpose of reducing the risk of the person’s mental condition worsening and the person returning to hospital for treatment for the mental disorder.
- the need is for enhanced specialised accommodation (“accommodation plus”);
- the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); and
- the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder.
- the arrangements for the person’s move to more suitable accommodation should be in place before withdrawing support under section 117; and
- it is important to fully involve the person and, if appropriate their advocate in making the decision.
- identify the type of accommodation which is suitable for the person’s needs;
- afford the person the right to a choice of accommodation; and
- involve the person in their care planning.
- Mrs X has a diagnosis of chronic paranoid schizophrenia, which is only partially responsive to treatment. She has had many stays in hospital mental health wards since the 1970s. In February 2016, following an accidental fire in her home, Mrs X was detained in hospital under section 2 of the Mental Health Act 1983, for assessment. At the time she had a history of not allowing the community mental health team into her home. In March, she was detained for treatment under section 3 of the Mental Health Act 1983.
- Mrs X moved from psychiatric hospital to a sheltered housing unit in July 2016. At first this was on section 17 leave. She was discharged from section 3 detention and placed on a CTO in August 2016. She has lived at the sheltered housing unit since then.
- Mrs X’s discharge summary from the psychiatric hospital says that Mrs X’s “daughter met with [her social worker] and agreed that she did not think her mum should return to her own home, and so extra care sheltered accommodation was to be arranged”. The discharge summary also contains the following information.
- “On 15/6/16 a discharge CPA/best interests meeting was held, as a flat had become available at [the extra care sheltered housing], to discuss the arrangements around discharge. It was discussed that [Mrs X] didn’t have the mental capacity to make a decision about going home or not…it wasn’t in her best interests to go home…It was discussed that her mental and physical health would be optimised with more support and the risk issues would be minimised by her being at” the extra care sheltered housing.
- Mrs X went on section 17 leave to the extra care housing on 4 July 2016.This went well, so the Trust started a CTO on 16 August 2016. The CTO contained a condition that Mrs X had to continue to live at the extra care housing unit.
- while in psychiatric hospital in July 2016, Mrs X was assessed as needing to go into extra care sheltered housing following discharge from hospital; and
- Mrs X accepted her depot injection [slow-release and long-acting injection] for treating schizophrenia while detained in hospital and in sheltered accommodation.
- Mrs X’s condition is complicated by cerebrovascular disease (conditions that affect the blood supply to the brain) which may have resulted in some cognitive impairment. However, the community mental health team has not completed a formal assessment because Mrs X will not comply.
- High blood pressure and poorly controlled diabetes make Mrs X susceptible to further strokes.
- Mrs X often denies she is unwell and refuses to take medication.
- Mrs X’s current mental state “appeared relatively stable”. The primary concern was Mrs X’s physical health and overseeing her condition is difficult if she refuses assessment.
Ms X contacted the Council in June 2018 to remind it that Mrs X’s housing benefit had stopped and to ask it to start paying Mrs X’s rent.
- to stop section 117 aftercare, both health and the Council must agree, the head of social care and the legal team must approve the decision;
- section 117 aftercare can remain without being used for rent, utility bills, or social care needs;
- Mrs X has a monthly depot injection and the CPN asks her how her mental health is;
- Mrs X has no symptoms of mental health problems at present which indicates “the aftercare provided (care package) is adequate to meet her needs”;
- the care package she received is for her physical health needs and this is what the social services finance team needs to assess;
- the rent is not included in section 117 aftercare because Mrs X’s sheltered accommodation is not a specialist mental health care home; and
- the reason Mrs X could not originally return to her own house was that it needed refurbishment because of fire damage. The sheltered housing was agreed because Mrs X had nowhere else to live and the care package agreed at the time was to supervise Mrs X when doing laundry and cooking to prevent another fire.
Mrs X and her daughters, Mrs X’s CPN, an officer from Mrs X’s sheltered housing unit and social work staff.
- The purpose of the review was “to discuss the mental health, physical health, accommodation and social care input since” Mrs X’s move to sheltered accommodation.
- Mrs X accepts her depot injection regularly and her mental health has been stable.
- Mrs X recovered well following a stroke in September 2017. She has been accepting her physical health medication.
- Mrs X enjoys interacting with carers but chooses not to take part in the activities available at the sheltered housing scheme.
- The current care package was four 15-minute carer visits a day, plus 1.5 hours of domestic and laundry help a week.
- continue receiving monthly depot injections;
- “continue to stay in [the extra care sheltered housing] and have input from the PMOA team (Psychological Medicine and Older Adults) to keep [her] mental health stable”; and
- have her needs reviewed yearly.
11 December 2018. The letter included the following information:
- Mrs X’s mental health has remained stable and she has complied with most medication, although she will sometimes refuse to take her physical health medication;
- part of Mrs X’s crisis and contingency plan was for staff at the sheltered housing unit to liaise with the community mental health team about Mrs X’s progress;
- in the past, when Mrs X was living in her own house, she would not allow access to members of the community mental health team or take medication for her schizophrenia;
- since July 2016 [when Mrs X moved into sheltered housing], the community mental health team has been able to see Mrs X and she has accepted depot injections; and
- the next CPA review was due in one year.
Mrs X’s family were not. The review decided to reduce the duration of the carers’ visits because Mrs X could do many of her activities independently.
- Mrs X’s psychiatrist had last seen her on 18 January and considered her mental state was relatively stable.
- Mrs X complied with monthly depot injections but not her physical health medication and monitoring.
- Mrs X received four carer visits a day to check her wellbeing and supervise her physical health medication. The care review of the same day had reduced their duration from 30 to 15 minutes each. Mrs X also received an hour a week help with laundry. Mrs X chooses not to take part in any of the activities and social events on offer in the sheltered housing scheme.
- its letter of August 2017 confirmed Mrs X was placed in extra care sheltered housing to meet a need arising from her condition, but that letter did not indicate a continuing need;
- it would not be appropriate to refund Mrs X’s accommodation costs since April 2018 because accommodation is not an integral part of her aftercare;
- this is because the accommodation no longer meets a need arising from a mental health condition and does not reduce the chance of Mrs X’s condition getting worse resulting in return to hospital;
- Mrs X could safely return to her own home, if not for the fact that it has been sold;
- the Council, Trust and CCG made this decision having reviewed Mrs X’s past CPA review documents in March 2019 and having had a meeting in May 2019.
- The records of the organisations’ original consideration of what Mrs X needs as section 117 aftercare are limited. There is no section 117 aftercare assessment or aftercare plan dating to Mrs X’s discharge from hospital. The only records available to us are a discharge summary and a medical report to a mental health tribunal when Mrs X challenged the CTO in 2016. The lack of records is fault, because all three organisations should keep adequate records of section 117 aftercare planning and of what is provided under section 117.
- I have been able to establish the following from the available records.
- The discharge summary says that Mrs X should not return home. It says her “mental and physical health would be optimised with more support and the risk issues would be minimised by her being at” the extra care sheltered housing unit.
- In 2016, the CTO required Mrs X “to continue living at” the sheltered housing unit. The Trust made this a condition of Mrs X’s CTO because it considered she was vulnerable, and her needs would be better met in sheltered housing. It also considered this environment would provide accessibility, supervision and support, whereas Ms X had in the past refused access to health professionals when she lived at home. Mrs X could have been recalled to hospital and detained again had she moved elsewhere while the CTO was in place.
- In August 2017, the Council wrote to Ms X agreeing that Mrs X was placed in the sheltered housing unit in order to meet a need arising from her condition. The Council therefore agreed to refund any rent costs over and above those already covered by benefits.
- Mrs X was placed in the extra care sheltered accommodation to meet a need arising from or related to her mental disorder;
- this was ‘accommodation plus’ because it allowed a level of supervision and access needed to ensure Mrs X would receive her depot injections and to monitor her mental state since her condition is only partially responsive to treatment; and
- the reason for placing Mrs X in the extra care sheltered accommodation was to reduce the risk of her mental state deteriorating and her being re-admitted to hospital.
- patients and carers should be present at review meetings where possible; and
- the “after-care plan, within the CPA, will be monitored and reviewed by the care co-ordinator or social worker/care manager and responsible consultant psychiatrist”.
- The Council and Trust considered Mrs X’s mental health and social care needs separately rather than jointly under the CPA approach.
- None of the CPA reviews conducted by the care coordinator and consultant psychiatrist between 2016 and 2018 have stated explicitly what Mrs X receives under section 117.
- None of the CPA reviews between 2016 and 2018 stated that she no longer needs extra care sheltered housing.
- Records of the last CPA review, in November 2018, state that the plan is for Mrs X to continue living in the extra care sheltered housing. There has not been a CPA review since.
- The meeting of March 2019 concluded that Mrs X’s current care could be provided with the same level of support in different accommodation, for example ‘ordinary’ sheltered accommodation. However, this was not a formal CPA review, the minutes refer to it as a review of the November 2018 CPA review.
- There is no evidence of an attempt to involve Mrs X or her family in the meeting of March 2019, as required by the Code of Practice and the Trust’s policy.
- While the notes of the meeting mention a psychiatrist’s report dated January 2019, there is no evidence of Mrs X’s psychiatrist being involved in the meeting or in considering whether she still needed accommodation as part of her aftercare. The section of the psychiatrist’s report quoted does not address this question. There is no written recommendation by Mrs X’s psychiatrist for a change to her section 117 aftercare, as required by paragraph 16.8 of the Trust’s section 117 policy.
- There is no evidence that the Council, Trust and CCG communicated their decision to Mrs X and her family or tried to source alternative appropriate accommodation.
- To remedy the injustice to Mrs X, the Council and CCG will refund any rent, service and utilities charges she has paid since 2016, minus Housing Benefit. They will also start paying her rent, service and utilities charges at the extra care sheltered accommodation until a properly conducted review decides that she no longer needs this accommodation as part of her section 117 aftercare. They will pay the refund and start paying the rent and associated charges within two months of this final decision. They will let the accommodation provider know they will do this within a month of this final decision.
- To remedy the injustice to Ms X, within a month of this final decision the Council will write to her with an apology and pay her £500, as already offered.
- To prevent similar problems in future, within three months of this final decision, the Council, CCG and 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 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 have provided evidence to the Ombudsmen that this has been completed.
- Faults by the Trust, Council and CCG led to Mrs X paying for accommodation which should have been free section 117 aftercare. Faults by the Council in dealing with Ms X’s enquiries and complaints caused her unnecessary time and trouble. The Council has already offered a fair remedy for Ms X’s injustice. The Ombudsmen have completed their investigation because the Council, Trust and CCG have accepted our recommendations for service improvements and to address the injustice to Mrs X.
Investigator's decision on behalf of the Ombudsman