Summary: Mr B complained that his mother, Mrs C, should not have been charged a top-up fee for accommodation that he says should have been funded under Section 117 aftercare. We found Dorset Council and NHS Dorset were at fault in not preparing a Section 117 or CPA care plan for Mrs C’s mental health needs when she was discharged from hospital, and in communication with Mr B about charges. We found this caused uncertainty to Mr B. We have made recommendations to the Council and NHS Dorset to remedy the failings found.

The complaint

1. Mr B complains that his late mother, Mrs C, should not have had to pay a top up for accommodation which he says should have been funded through Section 117 aftercare. Mr B says they paid approximately £7,000 in top ups which they wish to be refunded. He says the care home offered by Dorset Council (the Council) and NHS Dorset (the ICB) would not have met Mrs C’s needs. He also complains about a lack of support from the Council in finding an appropriate placement, and that communication about the funding arrangements was poor.
2. Mr B says that trying to resolve the situation around funding for Mrs C’s care caused him unnecessary distress and stress during Mrs C’s final months.

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The Ombudsmen’s role and powers

3. 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).
4. 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.
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. During my investigation of this complaint, I considered information provided to us by Mr B and discussed the complaint with him. I wrote to the Council and the ICB to tell them what I intended to investigate, and to request copies of relevant records. I considered the comments and documents they sent. I have also considered the law and guidance relevant to this complaint, as set out below.
7. Until 30 June 2022, NHS Dorset Clinical Commissioning Group (CCG) was the NHS organisation jointly responsible with the Council for Mrs C’s Section 117 aftercare. From 1 July 2022, the law changed and CCGs were replaced with Integrated Care Boards (ICBs). For clarity, I will refer to the ICB/ICBs throughout this draft decision statement, including when writing about the period before 1 July 2022.
8. Mr B, the Council and the ICB had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Mental Health Act (1983) and Section 117 aftercare

9. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (for example, Section 3). Aftercare services provided in relation to the person’s mental disorder under Section 117 cannot be charged for. This is known as Section 117 aftercare.

Section 117 and accommodation

10. 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 the treatment for the mental disorder.

11. 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 that Section 117 aftercare can include accommodation and continues as long as the person needs these services. Accommodation can generally only be part of Section 117 aftercare if:

• 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 health condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder.

12. If a Council is arranging or providing accommodation as part of someone’s Section 117 aftercare, people can exercise choice about their preferred accommodation. However, they may need to make a top-up payment if their preferred accommodation costs more than the Council and ICB would otherwise have needed to pay.
13. Councils and ICBs must keep a record of the people for whom they provide aftercare services and what those services are.
14. There is a joint local agreement in place between the Council and ICB on providing Section 117 aftercare.

Care Programme Approach (CPA)

15. 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). 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.

COVID-19

16. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

Court of Protection

17. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
18. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

What happened

19. Mrs C had a diagnosis of Lewy Body dementia. She also had hearing loss. Prior to the events complained of, Mrs C had been living at home with support from social care and a community mental health team. Mrs C went into a respite placement, where her condition deteriorated.
20. Mrs C was then moved to an inpatient psychiatric unit. Initially, this was for assessment under Section 2 of the Mental Health Act. Mrs C remained there under Section 2 for several weeks. The plan was for her to move to residential care. However, Mrs C wanted to return home. A Court of Protection hearing was held, to decide whether Mrs C had capacity to decide where she should live. The Court decided she did not have capacity to do so. At this time, Mrs C was detained in hospital under Section 3 of the Mental Health Act. In June 2020, Mrs C was discharged from the inpatient unit to residential care.
21. The Council said there were two care homes that could have met Mrs C’s needs on discharge from hospital. However, Mr B considered that only one of the homes was suitable as it had private bathroom facilities. He said Mrs C needed a private bathroom because she was deaf, and could become paranoid if she could not hear people coming up behind her. Mr B had visited the Council’s choice of care home in August 2019, and found it to be unsuitable. Mr B explained an independent adviser visited with him and also considered the care home unsuitable. Mr B was unable to visit it again at the time of Mrs C’s discharge from hospital in June 2020, because of restrictions relating to the COVID-19 pandemic.
22. Mr B initially agreed to pay a top-up fee for the accommodation with a private bathroom. However, Mrs C had been discharged under the COVID-19 funding stream, meaning her care was fully funded until February 2021. Mr B’s top-up payments for this period were refunded. From February 2021 the top-up fee was reinstated. Sadly, Mrs C died in September 2021.
23. Mr B complained to the Council about a lack of support in choosing a care home, saying the home the Council had offered was unsuitable. He asked for the top-up fees to be refunded. The Council responded that charging was within the regulations because under Section 117, people can pay a top-up if their choice of accommodation costs more than the Council would usually pay. Mr B was dissatisfied with this, as he said there was only one care home that was suitable. He then complained to the Ombudsmen.

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Analysis

24. I have set out the issues Mr B complained about under separate headings, below.

Top-up fee for accommodation

25. As noted above, Mrs C was detained in hospital under Section 3 of the MHA. This meant that on discharge from hospital, she was eligible for Section 117 aftercare services. These services must meet a need arising from the person’s mental health condition, and aim to reduce the risk of the person’s mental health condition worsening, therefore reducing the risk of them needing a further hospital admission.
26. On leaving the psychiatric unit, the Council assessed Mrs C’s social care needs under the Care Act. As noted above, the MHA Code of Practice (section 34.8) states the Care Programme Approach (CPA) should be used to plan care for most people who are entitled to Section 117 aftercare. The CPA care plan should clearly record whether the person is entitled to Section 117 aftercare and, if so, explain which care services will be funded under this section. The Council and ICB should also maintain a record of what aftercare services they are providing to whom. However, in Mrs C’s case, I have seen no evidence that a CPA care plan was completed. The Council said it assessed Mrs C’s needs using the Care Act because it was leading on assessing Mrs C’s needs. However, the Code of Practice and the local agreement for Section 117 aftercare say the CPA should be used.
27. It was appropriate for the Council to use the Care Act assessment to identify how Mrs C’s social care needs would be met. However, it was not a substitute for a CPA plan, which should have identified how Mrs C’s mental health needs would be met, in particular the paranoia which Mr B says was a key factor in Mrs C’s need for private bathroom facilities. The Care Act assessment says that “during periods of psychosis there is an interaction between [Mrs C’s] hearing deficit and her delusional beliefs”, but it makes no reference to a requirement for a private bathroom. However, had a CPA care plan been in place, this should have set out what type of accommodation Mrs C would have required to meet the needs related to her mental health condition.
28. I recognise Mr B considers Mrs C’s need for private bathroom facilities was specifically linked to her mental health, and that the accommodation offered by the Council would not have met those needs. The Council said Mrs C had been assessed as needing 24-hour residential care, and its choice of care home would have met this need, and was registered to deal with complex needs. However, as noted above, Mrs C’s care had not been planned in line with the CPA. Without information from a CPA plan about the type of accommodation Mrs C required under Section 117, I am unable to say whether she would have needed accommodation with private bathroom facilities as part of her funded Section 117 aftercare. It is possible that there may have been other ways of meeting this need. However, failure to complete a CPA plan was fault by the Council and ICB. The lack of a CPA plan leaves Mr B with uncertainty over whether Mrs C’s needs could have been met at the care home offered by the Council. I have made recommendations to address this, below.

Communication about the top-up fee

29. Mr B said that initially, he had understood the top-up fee was a social care top-up. As noted above, Mrs C’s care was fully funded at first under the COVID-19 hospital discharge funding stream. The top-up fee Mr B paid initially for this period was refunded. Mr B said it was not made clear to him why his payments were refunded, but that he later found out about Section 117 aftercare and understood that was how Mrs C’s care was being funded. However, he then received further bills for the top-up fee.
30. Mr B explained that even though he disagreed with the charges after he became aware of Section 117, he continued paying because he thought if he stopped the top-up payments, Mrs C might be moved to the other care home. He said Mrs C was settled at the home and he did not want her to move, as he felt this would cause a deterioration in her condition.
31. The Council said the family had chosen the more expensive home and therefore were asked to pay a top-up fee, in line with the Mental Health Act. The Council said it had discussed this with Mr B, and it was agreed and understood by the family at the time. Mr B disagreed with this, and said that discussions about a care home placement had taken place before Mrs C was detained, and therefore no information was given about Section 117 funding. In May 2021, the Council sent an email to Mr B to explain the charges. It set out the amount that would be paid by the Council and ICB under Section 117 aftercare, and said the additional fees of £720.77 per week would need to be topped up by Mrs C. In this email to Mr B, the Council said: “These top-ups are allowed under the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 following an amendment to S.117 of the Mental Health Act 1983”.
32. Therefore, the available information indicates the Council made Mr B aware that top-ups can be charged under Section 117 (as set out in paragraph 11), and what the specific charges were for Mrs C’s accommodation. However, this was not until May 2021, and the COVID-19 funding had stopped in February. It is not clear whether Mr B received and responded to this email, as the Council has not provided a copy of any response from him, and Mr B says he was not aware of Section 117 at this stage. The Council provided further information about Section 117 funding during a meeting with Mr B, but this was not until October 2021. At this time, the Council also explained about the COVID-19 funding stream which had covered Mrs C’s care home fees until February 2021.
33. As Mrs C was assessed under the Care Act, in line with the Care Act the Council should provide sufficient information to people about social care, including financial information and advice. Although the Council gave explanations about Section 117 and COVID-19 funding later, there was a lack of information provided to Mr B about why his payments were refunded and then re-started at the time the COVID-19 funding came to an end. I found fault by the Council on this point, leading to further uncertainty caused to Mr B.

Summary

34. I found fault by the ICB and the Council in not completing a mental health needs assessment using a CPA or Section 117 aftercare plan for Mrs C. This meant Mr B has been left with avoidable uncertainty over whether Mrs C’s accommodation should have been fully funded under Section 117.

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Agreed Actions

35. I recommend the Council and the ICB take the following actions within one month of the final decision:

• Apologise to Mr B for failing to complete a CPA or Section 117 aftercare plan when Mrs C was discharged from hospital, and for the impact of this;
• Make a payment of £200 to Mr B, shared between them, in recognition of the avoidable uncertainty caused.

Within three months of the final decision, I recommend the Council and ICB:

• Take steps to prevent recurrence, by reviewing their policy and process around completing CPA and Section 117 aftercare plans for people entitled to Section 117 aftercare. The Council and ICB should provide the Ombudsmen with evidence they have completed this work.

The Council and ICB have accepted my recommendations.

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Final decision

36. For the reasons explained in the Analysis section, above, I find fault with the Council and the ICB for lack of a CPA or Section 117 aftercare plan for Mrs C, and for lack of communication with Mr B about charging. I am satisfied the agreed actions will remedy the injustice caused. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman