Summary: Mrs B has complained about a Council’s decision not to investigate her complaint about Section 117 of the Mental Health Act aftercare. The Council decided that the complaint was made too late. The Ombudsmen will not investigate the complaint as, although there may have been fault in the Council’s actions, it probably did not lead to a significant injustice for Mrs B.

The complaint

1. Mrs B complains the Council declined to investigate her complaint about not receiving Section 117 (s.117) of the Mental Health Act aftercare in 2014.
2. 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. S.117 imposes a duty on health and social services to meet the health or social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3).
3. Aftercare services provided in relation to the person’s mental disorder under s.117 cannot be charged for. This is known as s.117 aftercare. Councils and the NHS have joint responsibility for s.117 aftercare as it is jointly funded by them.
4. The Council decided the complaint was outside the time limit for making a complaint.
5. Mrs B is unhappy that she has not had an investigation of her complaint and would like for the Council to reconsider and investigate.
6. If the Council investigates her complaint, Mrs B wants it to pay her £900 a week backdated to 2014 for s.117 aftercare she says she has missed out on. Mrs B also wants a refund for private healthcare she paid for as she was not receiving s.117 aftercare.

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The Ombudsmen’s role and powers

7. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify their involvement, or
• they cannot achieve the outcome someone wants

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I have considered the evidence provided by Mrs B and the Council. I have also considered the relevant legislation and guidelines. I considered Mrs B’s comments on my draft decision before making this final decision.

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My assessment

9. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the Regulations) state:

‘a complaint must be made not later than 12 months after—

(a)the date on which the matter which is the subject of the complaint occurred; or

(b)if later, the date on which the matter which is the subject of the complaint came to the notice of the complainant.

(2) The time limit in paragraph (1) shall not apply if the responsible body is satisfied that—

(a)the complainant had good reasons for not making the complaint within that time limit; and

(b)notwithstanding the delay, it is still possible to investigate the complaint effectively and fairly.’

10. In 2022 Mrs B complained to the Council. She said her complaint related to events in 2014 when she was sectioned under the Mental Health Act. She also asked for a payment relating to s.117 aftercare she said the Council and NHS should have provided her with.
11. The Council responded in January 2023. It referred to the above regulations and said:

‘The matter in regard to the Section 117 Aftercare dates back to events in 2014 and therefore is out of time and will not be considered as a formal complaint by the council.’

12. Mrs B had said she had recently obtained her medical records and had only then become aware of her entitlement to s.117 aftercare for this period. If the Council accepted this version of events if could have meant her complaint would not have been out of time as she had only recently become aware of the complaint.
13. The Council appears to have not asked Mrs B for her reasons for bringing the complaint late. It did not appear to explore the reasons for the delay in coming to the Council and so it appears did not properly apply the Regulations.
14. If the Council had correctly applied the regulations, it could then have gone on to consider whether it could investigate the complaint effectively and fairly according to the Regulations.
15. The events of this case were nearly 10 years ago and it would probably not be possible for the Council to carry out a fair and effective investigation after this length of time. For example, it would be unfair to expect staff to remember what happened in 2014 in relation to these events.
16. Therefore, although the Council may not have properly applied the Regulations in not considering Mrs B’s reason for the lateness of her complaint, there appears to have been no injustice to her as it is too late for an effective and fair investigation.

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Final decision

17. I decline to investigate this complaint as although there appears to be fault with the Council’s actions, Mrs B probably did not suffer a significant injustice as it would not be possible for her to have a fair and effective investigation at this late stage.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman