NHS County Durham Clinicial Commissioning Group (20 008 790a)

Category : Adult care services > Other

Decision : Not upheld

Decision date : 26 Jul 2021

The Ombudsman's final decision:

Summary: The Ombudsmen found there was fault by a Council in its communication about accommodation costs. However, the Council has already acknowledged this and offered and a financial remedy. We consider this provides a reasonable and proportionate outcome to remedy the injustice caused by the failings.

The complaint

  1. Miss D complains on behalf of Mr E about Durham County Council (the Council) and NHS County Durham CCG (the CCG). She complains that Mr E had to pay for his accommodation after he moved into a supported living placement in December 2019.
  2. Since Mr E had been discharged from hospital under section 3 of the Mental health Act in 2018, the Council had paid his accommodation costs. Miss D understood this was part of Mr E’s section 117 aftercare plan. She says there was a lack of clarity about the section 117 aftercare plan and the Council failed to tell her or Mr E that he would need to pay for his accommodation after he moved.
  3. Miss D wants the Council and the CCG to recognise that accommodation is part of Mr E’s section 117 aftercare plan and he should not be liable for the costs. She also considers the Council and the CCG should reimburse all the accommodation costs Mr E has already paid.

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The Ombudsmen’s role and powers

  1. 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).
  2. 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.
  3. 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)
  4. 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. 

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How I considered this complaint

  1. In reaching my decision, I have considered written and verbal information provided by Miss D as well as information from the CCG and Council, including complaint responses and Mr E’s care records. All parties had the opportunity to comment on a draft of my decision statement.
  2. Councils and CCGs have a joint responsibility for providing and reviewing section 117 aftercare. In this complaint, although the Council has been largely responsible for the section 117 aftercare provision, we have included the CCG in our investigation.

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What I found

Legal and administrative context

Mental Health Act and Section 117

  1. 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. Section 3 of the Mental Health Act is for the purpose of providing treatment. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
  2. Section 117 aftercare services must:
  • meet a need arising from or related to the mental disorder for which the person was detailed; 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.
  1. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and CCGs 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.
  1. Councils and CCGs must keep a record of the people for whom they provide aftercare services and what those services are.

Care Programme Approach (CPA)

  1. 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).

Background

  1. Mr E was discharged from hospital in March 2018. He had been detained under section 3 of the MHA. The clinical team considered Mr E needed a provider skilled and trained in managing people with challenging behaviour and offending behaviours. The preferred model of care in the area was a supported living placement. However, at the time there was a shortage of supported living vacancies. The Council identified a residential care placement which could meet Mr E’s needs and he moved there.
  2. The Council and the CCG did not have a way of separating accommodation costs from a residential care package. Therefore anyone with section 117 aftercare needs in a residential care setting had their whole package provided free of charge. Because Mr E was receiving section 117 aftercare he did not need to pay towards his accommodation at the residential care placement.
  3. In April 2019 the care home gave notice to Mr E to vacate his placement due to incidents of aggression and damage to property. He asked the Council to help him find a self‑contained flat. The Council identified a suitable supported living placement and he moved there in December 2019.
  4. The Council held a CPA meeting in December 2019. During the meeting Miss D asked if the section 117 aftercare funding would continue to meet Mr E’s accommodation costs. The Council advised accommodation was not identified as a section 117 aftercare need, but it noted the care plan from 2018 lacked clarity and detail about section 117 aftercare. The Council agreed to clarify this. At his point no one was paying for Mr E’s accommodation and rent arrears were building up.
  5. In February 2020 a budget panel met to consider Mr E’s rent arrears. The Council and the CCG submitted a request for Mr E’s rent and arrears to be paid for through section 117 funding. However, the panel rejected this on the basis that Mr E’s accommodation was not ‘specialist’.
  6. Miss D is Mr E’s court appointed deputy for property and affairs. On 25 February the Council spoke to her about applying for housing benefit for Mr E to cover his accommodation costs. Miss D agreed to look into this.
  7. A couple of weeks later Miss D advised the Council that Mr E was not eligible to claim housing benefit because he had savings of over £16,000. Although Miss D was still enquiring about Mr E’s section 117 aftercare funding, she agreed for Mr E to pay his rent arrears and weekly rent to prevent the risk of him being evicted.
  8. A further CPA meeting took place in March 2020. An earlier CPA meeting had been cancelled because of bad weather. At the CPA meeting, Mr E’s consultant psychiatrist clarified that he did not need specialist accommodation.
  9. By May 2020 Mr E’s savings had reduced and he became eligible to claim housing benefit. Miss D submitted a claim on his behalf. The Housing Benefit covered most, but not all, of Mr E’s weekly rent.
  10. Miss D complained to the Council that it had not told Mr E he would need to pay for his accommodation when he moved. As section 117 aftercare funding had always met his accommodation costs, Miss D considered he had no reason to expect his new accommodation would be any different.
  11. The Council’s response recognised the care plan in 2018 (when Mr E was discharged from hospital) did not include enough detail about section 117 aftercare needs. It also accepted it had not discussed financial implications of the move with Mr E until the CPA meeting in December 2019. It agreed to pay Mr E’s accommodation costs from December 2019 to February 2020, when it said the financial implications became clear.

Analysis

  1. When Mr E was discharged from hospital in 2018, his care plan lacks specific detail about section 117 needs. The Council has already accepted this was fault. However, the records show Mr E’s needs related to personal and social care support. The care plan does not identify specialist accommodation as a need to prevent Mr E’s readmission to hospital under the MHA. This would be needed for section 117 aftercare funding to cover accommodation costs.
  2. As there were no available supported living placements suitable for Mr E, the Council identified a care home placement that could meet his needs and he moved there. The Council could not separate accommodation and care costs for care home placements. Therefore, Mr E received free accommodation in 2018 as part of his care package even though these costs were not part of Mr E’s section 117 aftercare plan. On the balance of probabilities, had Mr E moved to a supported living placement in 2018, section 117 aftercare would not have covered his accommodation costs.
  3. When Mr E moved in December 2019, this was a change of circumstances and the Council should have explained the differences in charging in advance of him moving. This did not happen until Miss D asked the Council at the CPA meeting in December 2019. This was fault. However, I do not consider this affected the outcome in relation to Mr E’s choice of accommodation. The care home placement could not continue and Mr E and everyone involved in his care agreed that supported living was the most suitable accommodation to help promote his independence.
  4. Therefore, on the balance of probabilities Mr E would have not had his accommodation costs met from December 2019 onwards. The records show the Council did not provide information or support about claiming housing benefit until February 2020. This should have happened sooner given the change of accommodation status in December 2019 and is fault. However, the Council has accepted this fault and offered to meet Mr E’s rent costs between December 2019 and February 2020.
  5. The Council’s response to the Ombudsmen’s enquiries also confirmed it is reviewing its section 117 aftercare guidance and is working with other local authorities and health partners with the aim of improving consistency. It said it will include instructions for care coordinators and the finance team in its revised policy and provide training.
  6. I consider this is a fair and proportionate outcome to the complaint, which remedies the injustice to Mr E. He was liable for the payments from December 2019, but the Council has accepted the unfairness of the poor communication by offering to cover these costs. The Council’s payment offer covers Mr E’s rental charges up to the point where it confirmed section 117 aftercare funding would not meet his accommodation costs and that he would need to apply for housing benefit. However, I understand the Council has yet to make this payment to Mr E.

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Agreed actions

  1. Within one month of the date of the Ombudsmen’s final decision statement, the Council will make the agreed payment to cover Mr E’s rental costs between December 2019 and February 2020. It should discuss this with Mr E/Miss D to ensure it pays this in a way that does not impact on Mr E’s ability to claim housing benefit for his future accommodation costs.

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Final decision

  1. There was fault by the Council in its communication with Mr E about changes to his accommodation status. This meant he was not aware of his liability for paying accommodation costs after he moved to from his care home placement. The Council has already accepted this fault and offered a financial remedy. I consider this is a fair and proportionate offer and I have made recommendations to ensure the Council makes this payment. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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