Summary: The Ombudsmen find Sagecare Limited did not act with fault when it ended Miss G’s support after she harassed staff. However, Cheshire East Council missed the opportunity to carry out a formal section 117 review with a local NHS Trust and/or South Cheshire Clinical Commissioning Group, before it decided against reinstating that support. That fault caused Miss G and her mother, Mrs M, uncertainty which the Council should remedy.

The complaint

1. Mrs M complains on behalf of her daughter, Miss G, that Sagecare Care Limited (Sagecare) stopped providing section 117 aftercare to Miss G due to her stalking behaviours. That was unfair because Miss G’s behaviour was due to her autism.
2. Mrs M says Cheshire East Council (the Council) and South Cheshire Clinical Commissioning Group (the CCG) have not provided a replacement care package. As a result, Mrs M says Miss G has not received the support she needs, which led to Miss G being sexually assaulted. Mrs M would like the organisations to reinstate the support Miss G needs.
3. Mrs M says she has been Miss G’s full-time carer since the section 117 aftercare stopped. The Council has refused her requests for respite. Therefore, she had to quit her job and is only on Employment Support Allowance. Mrs M would like a financial remedy to address the impact to her.

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The Ombudsmen’s role and powers

4. 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)
5. 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).
6. 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.
7. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
9. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
10. 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

11. I have read the papers submitted by Mrs M, and discussed the complaint her. I have considered the Council, the CCG and Sagecare’s comments about the complaint and its supporting documents. I have also taken the relevant law and guidance into account before coming to a view.
12. Miss G, Mrs M and the organisations 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

Section 117 aftercare

Background

13. Miss G has autism and a chromosome abnormality which causes behavioural problems.
14. In 2016 Cheshire and Wirral Partnership NHS Foundation Trust (the Trust - not subject to this investigation) detained Miss G under section 3 of the Mental Health Act. She had stalked paid support workers. The Trust later discharged Miss G from section 3 and she started to receive section 117 aftercare.
15. The Trust developed a Positive Behaviour Support Plan (the PBS Plan) in 2017 which provided guidance for support workers to understand Miss G’s autism, and how that can impact her ability to keep boundaries. The PBS Plan said:
• Miss G might use social media to the point of harassment to support workers.
• Triggers for Miss G’s challenging behaviour included: lack of structure, perceived lack of care, feelings of rejection, not feeling listened to, unexpected change, arguments, police contact and cancelling activities.
• Signs of Miss G’s escalating behaviour included: self-harm threats, attempting to go places by herself and using alternative methods (another person’s phone) to see friends.
• Staff should not use their phones in front of Miss G, and their social media accounts should be private.
• Miss G should always have two support workers to stop her fixating on one. Those staff should be on a weekly rota, to avoid certain staff constantly supporting Miss G.
• Sagecare should encourage Miss G to attend community-based events to build her social network and increase her social skills.
• Miss G should not dictate who supports her, give gifts to staff, search for staff online or ask about their private life.
16. In 2018 Sagecare assessed Miss G’s needs and noted Miss G wanted to enjoy activities in the community and develop new and existing friendships. Sagecare also completed a risk assessment which identified self-harm, stalking behaviour, verbal aggression and accessing the community as risks. It said staff should follow the PBS Plan in the event Miss G’s behaviour escalated.
17. In early 2019, the Trust said Miss G’s needs could be managed by the Council, and there was no evidence Miss G had a mental disorder. Therefore, it discharged Miss G from its care. Mrs M said no one told her the Trust discharged Miss G.
18. In March 2019, the Council reviewed Miss G’s Care and Support Plan (the Council Care Plan) and said:
• Sagecare provided 2:1 support, 15 hours per week to access the local community and activities.
• Miss G could meet friends and travel safely and independently in the local community.
• Miss G wished to reduce her support from 2:1 to 1:1, but Sagecare said that was not possible due to Miss G overstepping boundaries.
• Mrs M was concerned support workers gave Miss G hugs and had physical contact with her.
• Overall, Miss G was learning to understand boundaries and the support from Sagecare was good.
19. In April 2019, the social worker met with Sagecare. Sagecare noted Miss G followed staff when supporting another person in the community. Also, Miss G asked for personal information from support workers and insisted they answer her. Sagecare staff agreed to escalate that to management in future. The social worker told Sagecare that staff should not be hugging Miss G. She said: “this has to stop with immediate affect [sic], [Miss G] requires strict boundaries in place in order for this not to be misinterpreted”. She also said: “Please can you ensure that No personal information/ conversations are taken place in front of [Miss G] - this will help to stop issues with stalking should she become fixated on a member of staff”.
20. In May 2019, Mrs M told the social worker Miss G sent gifts to an ex‑support worker. Miss G later said the gifts were for a friend who she used to work with.
21. On 6 June 2019, Mrs M told the social worker Miss G wanted to explore areas outside the local community. The social worker said day trips to other towns and cities was not in line with the PBS or Council Care Plan.
22. A few weeks later, Miss G’s support worker told the Sagecare manager Miss G discussed suicidal intentions and did not know what to do. The Sagecare manager recommended taking Miss G home to Mrs M.
23. The Sagecare manager later said Miss G alleged a support worker had pushed her on to a bus. However, that support worker’s colleague refuted that allegation. The support worker’s colleague said Miss G was arguing with Mrs M during the shift, and Miss G told Mrs M she “could not wait for her to drop dead”.
24. Miss G then sent hundreds of messages to a support worker from many fake accounts on social media. Miss G said she cared about the support worker and wanted to be friends. Miss G sent photographs of the support worker’s children to her and knew what school they went to. The support worker blocked the accounts, and told her manager she refused to work with Miss G. The support worker later resigned.
25. The Sagecare manager told the social worker that her staff would not support Miss G after recent events. It did not have enough staff willing or trained to support Miss G. Miss G continued to stalk the support worker into July 2019. The social worker recommended Sagecare involve the police.
26. In late June 2019, the social worker reassessed Miss G’s section 117 aftercare. Mrs M, another social worker, and Sagecare were present. The social worker noted:
• No health bodies managed or funded Miss G’s aftercare. Mrs M later said no one told her that during the meeting.
• The social worker referred Miss G to the Trust to complete an IQ test. Miss G agreed to complete one.
• There were no concerns about Miss G’s mental health.
• She considered Miss G’s view that she wanted to visit cities outside of the local area. However, Miss G’s support is to integrate her back into the community to avoid a readmission to hospital under section. Miss G could independently travel between local towns and should still engage in activities in the local community, according to the Council Care Plan. That was important to improve her daily living skills.
27. Between June and September 2019, the Council and Miss G’s solicitor (the solicitor) corresponded about best way to meet Miss G’s aftercare needs. The solicitor said the Council should reinstate Miss G's care package to meet her need. The Council said that Miss G could access the community and travel independently. Also, introducing a new care provider, so soon after Miss G had harassed a support worker, was too much of a risk. Rather, the Council referred Miss G to its Mental Health Reablement Team (the Mental Health Team) to provide six hours of 2:1 support to meet her needs in line with the Council Care Plan.
28. The Mental Health Team supported Miss G to engage in activities in the community, but Miss G preferred to have support workers and wanted options to visit other cities. By September 2019, the Council agreed to the solicitor’s request to reinstate Miss G’s care package.
29. After September 2019, the social worker requested expressions of interest from care providers to support Miss G. One provider, Provider A could not provide 15 hours per week.
30. In October 2019, another provider, Provider B, met with Miss G, Mrs M, an advocate, and the social worker. Miss G wanted to travel to other cities without restriction. The social worker reiterated that would not meet her aftercare needs, so Provider B withdrew its offer to support Miss G.
31. In November 2019, two further providers did not agree to support Miss G. There was then a delay of three months finding a suitable time for Provider C to meet Miss G, Mrs M and the advocate.
32. Provider D later started supporting Miss G in May 2020.
33. In response to my enquiries, Sagecare said its staff were trained to manage Miss G’s needs. It did not agree Miss G’s behaviour escalated. There was friction with Miss G after April 2019, due to the restrictions in her support. However, there was no warning Miss G behaviour would escalate so quickly in June. It did not believe it missed the opportunity to stop the stalking behaviour.
34. In response to my enquiries, the Council said:
• It addressed boundary issues with those working with Miss G. The Sagecare manager confirmed she reminded staff about maintaining boundaries.
• It recognised a more proactive approach to support Sagecare would have been better. The social worker subsequently offered to offer Miss G’s current care provider training on autism to increase their ability to manage Miss G.
• It made appropriate referrals to health and social care professionals to reduce the risk of Miss G’s behaviour escalating. It cannot say what difference that support would have made to Miss G before June 2019.
• Miss G refused support at home and in the local community after June 2019.
35. I asked Mrs M about the Council’s last bullet point. Mrs M said Miss G was not involved in planning her care and support, it was imposed. Also, Miss G refused support because it was too restrictive. The Council would not let her leave the local area.

Relevant law and guidance

36. 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 persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
37. 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.
38. Autism is a developmental condition which affects the way a person communicates with others and perceives and makes sense of the world. People with autism have difficulty with social interaction, social communication and rigid and repetitive ways of thinking and behaving.
39. Think Autism is a government strategy for improving the lives of people with autism. Statutory guidance (2010) says basic autism training should be available to all staff working in health and social care. Those in key roles should have specialist training.

Organisational responsibilities

40. Before I consider Mrs M’s complaints, I will set out Miss G’s section 117 arrangement below:
• The Council said Sagecare provided section 117 aftercare to stop Miss G going back to hospital under section.
• Sagecare was not aware it was providing section 117 aftercare.
• The CCG commissioned the Trust to provide mental health services. It did not know who Miss G was or what support she received.
• The Trust supported Miss G under CPA until early 2019, when it discharged her with no evidence of a mental disorder. The Council then solely met Miss G’s needs.
41. Sagecare’s support helped stop Miss G going back to hospital under section. I am not persuaded the Council clearly explained that to Sagecare. That was fault.
42. I do not consider the CCG had any oversight over Miss G. Mrs M said the CCG told her it did not know who her daughter was. While the CCG was not directly commissioning any support to Miss G during 2019, it should keep a record of people who get section 117 aftercare, and what services they receive. That was fault. I do not consider there is an injustice to Miss G or Mrs M. However, there is a potential injustice to others.

Analysis

43. Mrs M says Sagecare unfairly stopped providing Miss G’s section 117 aftercare.
44. I do not believe there is any doubt Miss G’s stalking behaviours are linked to her autism and chromosome abnormality. All parties agreed this was the case.
45. I do not consider Sagecare acted with fault when it decided to stop supporting Miss G in June 2019. Sagecare had a duty of care to protect its staff from Miss G’s stalking behaviours. I can understand why Miss G’s support workers stopped supporting her. Once Sagecare had no staff trained to support Miss G, it was the Council’s responsibility to ensure it met Miss G’s section 117 aftercare needs.
46. While I do not consider Sagecare acted with fault, I have considered if Sagecare and the Council did enough to reduce the risk of Miss G’s escalating behaviours. I have considered events between April 2019 (when Miss G’s behaviour started escalating) and November (when Mrs M complained to the Ombudsmen).
47. Before 22 June 2019, Sagecare and the Council’s care records show Miss G’s behaviour was escalating. She was sending gifts to others (albeit not ex‑support workers), showing suicidal intentions and requesting personal information from support workers. These were all signs in the PBS Plan that Miss G’s behaviour could get worse. I consider, on the balance of probabilities, her behaviour was related to staff not upholding personal boundaries.
48. Sagecare and Mrs M have not been able to provide me with the support worker’s care records for the period I am investigating. Sagecare said Mrs M will not return the records to them. Mrs M sent me limited records not related to the period I am investigating. Based on this, I will not always be able to say how support workers managed Miss G’s behaviour. Therefore, I have based my findings on the Council’s social care record and communication with Sagecare.
49. Mrs M had concerns Miss G sent a gift to an ex-support worker. I consider the social worker was alert to the risk of sending gifts, but appropriately investigated Mrs M’s concern and was satisfied the gift was for a friend. Based on the evidence at that time, that was good practice.
50. When Miss G showed suicidal intentions, her support worker did not know what to do. The PBS Plan is not prescriptive what to do in that situation. While the support worker lacked confidence what to do in that situation, I do not consider she acted with fault. She referred to her manager, appropriately decided to send Miss G home, and updated the social worker.
51. Generally, the social worker regularly reinforced professional boundaries to Miss G and Sagecare. The social worker also used set phrases from the PBS Plan in difficult conversations with Miss G. That was good practice.
52. Overall, I do not consider the Council and Sagecare missed an opportunity to review Miss G’s behaviour in the round. The time between Miss G’s suicidal intentions and the intense harassment of the support worker was just two days. Therefore, I cannot say, even on the balance of probabilities, if a holistic review of Miss G’s behaviour would have stopped Miss G harassing the support worker.
53. Mrs M says the Council did not provide a replacement care package.
54. The social worker made a significant decision on 27 June 2019 that Miss G did not need support workers. That was the social worker’s professional judgement. After reviewing the Council’s social care records, I believe the social worker took that decision with fault. I understand the social worker wanted to reengage the Trust at that time, and earlier. However, I consider the Council should have held a formal section 117 review, with the Trust and/or the CCG before it decided to withdraw Miss G’s support workers. That review should have been carried out under the CPA because Miss G was still receiving section 117 aftercare. Miss G would have most likely have benefitted from a comprehensive assessment of her health and social needs. Her behaviour had significantly deteriorated by 27 June, and there was a clear risk she could be sectioned again.
55. I cannot say, even on the balance of probabilities, what the outcome of a formal section 117 review under the CPA, with the Trust/CCG, would have been. However, it was a missed opportunity, which has caused Miss G and Mrs M uncertainty. The Council will need to remedy that injustice to Miss G and Mrs M.
56. After July 2019, Miss G received little support engaging in activities in the community, except the limited support from the Mental Health Team between July and September 2019. I am not persuaded the Council always met Miss G’s needs after July 2019. There is little evidence Miss G was engaging in activities in the local community. That was fault.
57. After July 2019, Miss G was frustrated with the restriction in her support. The social worker repeatedly said Miss G should focus on building her confidence engaging in the local community. The friction between those views caused delays reinstating support workers. I understand Miss G’s wish for greater flexibility, but the PBS and Council Care Plan noted how important it was for Miss G to engage in activities in the local community.
58. I have already said the social worker should have waited to carry out a formal CPA review with the Trust/CCG before deciding to withdraw Miss G’s support. However, until that review is held, I consider the social worker then appropriately kept the focus of Miss G’s support about engaging in the local community. That was the main support to avoid Miss G being sectioned again. I appreciate Miss G and Mrs M disagree with that view. However, in the absence of a formal CPA review, I consider the social worker appropriately focussed on the recommended support in the PBS and Council’s Care Plans. Therefore, I cannot agree the social worker was at fault for the delays reinstating Miss G’s support after July 2019. The Council’s social care record show until November the social worker continually tried to source support workers for Miss G.

Respite requests

Background

59. The Council provided Mrs M with a direct payment to support her as a carer for Miss G since 2017.
60. In May 2018, the Council reviewed Mrs M carer’s assessment. It noted Miss G’s behaviour was challenging, and because Mrs M worked through the week, she had little respite in the evenings and weekends. That was impacting Mrs M’s emotional and physical health. Specifically, Mrs M could not achieve the following outcomes:
• Proving care to other persons for whom the carer provides care
• Maintaining a habitable home environment
• Managing and maintaining nutrition
• Developing and maintaining family or other personal relationships
• Engaging in work, training, education, or volunteering
• Making use of recreational services in the local community
61. Therefore, Mrs M could use the direct payment to employ cleaners to keep the home clean and safe. The Council also referred Mrs M to a centre to explore opportunities in the community for respite.
62. Since May 2018, the Council has not reviewed Mrs M’s needs as carer despite Miss G’s section 117 care and support breaking down in June 2019.
63. In July 2019, Mrs M requested further support as carer, and the Council posted information about carer support to her.
64. In September 2019, Mrs M requested support for Miss G so Mrs M could get some respite. However, the strained relationship between Mrs M and her daughter stopped that from happening. Mrs M later told the Council about her problems with Miss G, and how that was impacting her needs as a carer. The Council referred Mrs M to the Carer’s Hub to discuss her situation. The Carer’s Hub service is the access point for carers to complete an assessment and support plan.
65. In response to my enquiries, the Council told me Mrs M’s only needs from May 2018 were to maintain the home, and to pursue interests outside the home as respite. Also, because Miss G can maintain her personal hygiene and feed herself, the Council did not consider Mrs M needed to meet those needs.

Relevant law and guidance

66. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
67. Where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Analysis

68. I have considered the carers assessment from 2017 and the review in 2018. I have also considered the Council’s chronology of contact with Mrs M after June 2019 and its social care record.
69. The Council delayed reviewing Mrs M’s needs as a carer after May 2018. When Miss G’s support package significantly changed in June 2019, the Council should have reviewed Mrs M’s needs as a carer. I consider it was fault that it did not.
70. The Council told me in February 2020 it tried to arrange a review with Mrs M, but due to her holiday she could not attend. Mrs M says she was visiting her son, not on holiday. Regardless, I do not consider the Council’s response justified a delay of eight months by that point.
71. Mrs M’s needs increased after June 2019 as she had to bridge the gap in Miss G’s support. The Council’s evidence showed Mrs M was struggling to support Miss G, and her request for respite/support in September 2019 did not happen. I consider the Council again missed the opportunity to review Mrs M’s needs as carer. I appreciate the Council referred Mrs M to the Carer’s Hub. However, the Carer’s Hub is the entry point for carer support. Mrs M needed a social worker to review her existing needs.
72. If the Council had reviewed Mrs M’s needs in June 2019 (when Sagecare stopped Miss G’s support), it would have recognised Mrs M’s needs would have increased. I cannot say how the Council would have supported Mrs M if not for the fault. However, the Council did not support Mrs M’s increased needs after June 2019. That was a missed opportunity.
73. I cannot say whether, had the Council properly reviewed Mrs M’s needs as a carer, she would have stayed in her job. However, the fault clearly impacted Mrs M’s wellbeing as she did not get the respite she needed. Mrs M has also suffered uncertainty at not knowing how the Council would have supported her after June 2019. The Council should take action to remedy this injustice.

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Agreed action

74. Within four weeks, I recommend the Council should:
• Apologise to Miss G and Mrs M for the uncertainty caused by not completing a formal section 117 review with the Trust/CCG, before it decided to withdraw Miss G’s support workers.
• Apologise to Mrs M for the uncertainty and impact to her wellbeing by not reviewing her carer needs in June 2019.
• Pay Mrs M and Miss G £400 and £200 respectively, to recognise the impact of the Council’s fault.
75. Within eight weeks, I recommend the Council should:
• Introduce a process to ensure when it commissions organisations to provide section 117 aftercare on its behalf, it explains what section 117 is, and why it is asking that organisation to provide it.
• Complete a formal section 117 review of Miss G’s aftercare needs under the CPA. The Council should approach the Trust and the CCG to attend that review to complete a comprehensive review of Miss G’s health and social care needs.
• Carry out a review of Mrs M’s needs as carer. The Council should also review its processes to ensure it carries out reviews of carers assessments in accordance with the Care Act 2014 and Care and Support Statutory Guidance.
76. Within eight weeks, I recommend the Council and CCG should work together to ensure it has a joint record of who receives section 117 aftercare in its area. This should be the case even if one of those organisations does not commission or provide that support.
77. The Council and the CCG have accepted my recommendations above.

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Final decision

78. I have completed my investigation and uphold Miss G and Mrs X’s complaint. There was fault by the Council which caused them both an injustice. I am satisfied the action the Council (and the CCG) will take is sufficient to remedy the injustice to them (and others).

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Investigator's decision on behalf of the Ombudsman