Summary: Ms D complains the Council and NHS Sussex refuse to pay for the full cost of her mother, Ms M’s, mental health aftercare. We have upheld the complaint and recommended remedies for Ms M and service improvements for the organisations. The Council and NHS Sussex accept our recommendations, so we have completed our investigation.

The complaint

1. The complainant, whom I shall call Ms D, complained about faults by East Sussex County Council (the Council) and NHS Sussex (the ICB) related to her mother
   (Ms M’s) mental health aftercare funding. In particular, Ms D complained the Council and ICB:
• failed to pay for the full cost of a live-in carer to meet their duty under section 117 of the Mental Health Act 1983; and
• wrongly limited the amount they were willing to pay towards the cost of aftercare.
2. Ms D said that as a result:
• Ms M was wrongly paying £395 a week from her own funds towards the cost of aftercare that should be free; and
• Ms D and Ms M have suffered avoidable worry about Ms M having to go into residential care when her savings run out.
3. Ms D wanted the Council and ICB to reconsider the decision to limit funding for live-in care, and to pay the full cost of live-in care, or increase their contribution towards the cost.

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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 may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
6. 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).
7. If it has, they may suggest a remedy. Our recommendations might include asking an 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.
8. 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

9. I have considered:
• information Ms D has provided in writing and by telephone;
• the Council’s and ICB’s written responses to my enquiries, and supporting evidence they have provided;
• relevant law and guidance, which I have referenced below. This includes the Ombudsmen’s Section 117 Aftercare – Guidance for practitioners; and
• comments from all parties on an earlier draft of this decision statement.
10. Until 30 June 2022, NHS East Sussex Clinical Commissioning Group (CCG) was the NHS organisation jointly responsible with the Council for Ms M’s section 117 aftercare. From 1 July 2022, the law changed and replaced CCGs with Integrated Care Boards (ICBs). For clarity, I have referred to the ICB throughout this decision statement, even when writing about the period before 1 July 2022.
11. Ms D, the Council and the ICB have had an opportunity to comment on draft versions of this decision. I took their comments into account before making a final decision.

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What I found

Relevant background, law and guidance

12. Ms M has a long history of bipolar disorder, a condition that affects moods. In 2003, she was detained under section 3 of the Mental Health Act 1983. More recently, she was diagnosed with dementia. Ms M no longer has the mental capacity to make decisions about her health and care needs. She needs help and supervision to stand, move around, take medication, dress, receive personal care, eat and stay safe. She believes she is still independent. Ms D holds lasting power of attorney for Ms M’s finances.
13. 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 the purpose of providing treatment. 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.
14. 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. It says:
• ICBs and councils should interpret the definition of aftercare broadly;
• councils and ICBs can make direct payments for aftercare services; and
• if a council is providing or arranging accommodation as part of a person’s aftercare, the person can in some circumstances pay top-ups to live in their preferred accommodation.
15. 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.
16. Where a council provides or arranges accommodation as part of a person’s section 117 aftercare, the person can express a preference for a particular accommodation. The council must provide the preferred accommodation under certain conditions. This includes preferred accommodation which is more expensive than the council would provide, if the person or a third party is willing and able to pay the extra cost (‘top-up’). However, this does not apply to aftercare in a person’s own home. (Mental Health Act 1983, section 117A and The Care and Support and After-care (Choice of Accommodation) Regulations 2014, regulations 2 and 4.)
17. The Council and ICB have a local agreement on section 117 aftercare.
18. Councils and ICBs must keep a record of the people for whom they provide aftercare services and what those services are. The duty to provide aftercare continues as long as a person needs the aftercare.
19. 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. The Code says the CPA should be used for most people who are entitled to section 117 aftercare. Central to the CPA is the care plan. This is a record of any physical, psychological, emotional and social needs associated with the person’s mental health condition. Chapter 34 of the Code says the care plan should state which services will be funded under section 117.
20. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the rights to liberty and security of person (Article 5), and respect for private and family life (Article 8). The Act requires all councils and NHS organisations to respect and protect individuals’ rights.
21. A lack of resources is not a legitimate reason for failing to protect Article 5 rights. An organisation would need to show that it was pursuing a legitimate aim to justify the failure to protect a person's Article 5 rights. Any interference with Article 8 rights must be:
• in accordance with the law;
• in pursuit of a legitimate aim;
• no more than necessary to achieve the intended objective; and
• not arbitrary or unfair.
22. The Ombudsmen’s remit does not extend to deciding whether an organisation has breached the Human Rights Act. Only the courts can do this. But the Ombudsmen can make decisions about whether organisations have had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
23. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to decide for themselves.
24. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made for a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same result. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

25. In February 2020, the Council became aware that Ms M had been:
• eligible for free section 117 aftercare following her 2003 hospital admission; and
• funding care herself, which should have been part of her section 117 aftercare.
26. Following a review, Ms M received a backdated payment of just under £11,000 to remedy this.
27. Ms M had two periods in hospital in the first half of 2020 because her mental health worsened. She also had falls causing a bleed on the brain. When she was due to leave hospital in June, she was told she could not return to her own home alone, as she needed 24-hour care. Ms M was not willing to go into residential care. The Council assessed Ms M while she was in hospital and concluded:
• Ms M “will require a live-in carer on discharge from hospital”; and
• moving into residential care “would be to the severe detriment to [Ms M’s] mental wellbeing…considering her mental health history, it would not be in her best interest, nor would it be the least restrictive approach”.
28. The cost of a live-in carer for Ms M is £995 a week. The care was fully funded through Government COVID-19 hospital discharge funding until September 2020.
29. The Council and ICB agreed the live-in carer was providing section 117 aftercare, which they have a joint duty to fund. However, they would not pay the full cost. They would only pay £600 a week because:
• they considered Ms M’s needs could be met in a residential care home specialising in dementia; and
• £600 was the average weekly cost of a room in such a care home.
30. On 25 March 2021, the Council assessed Ms M’s mental capacity to make decisions around her social care needs because she had stated she did not like having a carer around at all times. The Council stated the following in its assessment report:
• Ms M was “emphatic” that she would not go into residential care;
• “due to her mental health, if this move was imposed it would have a serious detrimental effect on her mental health and likely result in further detainment under the mental health act”; and
• Ms M did not have the capacity to decide about her care needs.
31. The following day, the Council considered which care option was in Ms M’s best interest. It consulted Ms M’s family and mental health professionals. It decided:
• residential care was the most restrictive option; and
• support from a live-in carer was in Ms M’s best interest.
32. Around the same time, Ms D raised concerns with the Council about Ms M’s care costs. The Council wrote to Ms D in May 2021. Its letter included the following.
• It was the family’s preference for Ms M to receive care at home.
• The family confirmed Ms M could continue to fund the difference between normal residential care rates and live-in carer rates, for about two to three years.
• If Ms M’s “needs were to be met in a residential care setting, an assessment relating to a need for a Deprivation of Liberty (DOL) would be undertaken, whereby appeal via the Court of Protection may need to be considered in the event of a meaningful objection”.
33. Ms D wrote to the Council again in May and June 2021, to challenge its response. She also asked for an NHS continuing healthcare (CHC) assessment for Ms M. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC cannot be used to pay for services that should be provided under section 117. However, people who receive section 117 aftercare can also receive CHC for other, unrelated health needs. The Council replied in July. It said:
• Ms M is not eligible for CHC funding because she receives section 117 aftercare;
• a review decided Ms M’s needs are severe and enduring, and will continue to be met under section 117 aftercare;
• the Council could not rule out residential care being able to meet Ms M’s needs;
• the Council could not conclude that “the current high level of community provision is the only provision able to meet [Ms M’s] needs”;
• the Council and ICB would need evidence that residential care or other alternatives could not meet Ms M’s needs;
• Ms M’s needs should be reviewed regularly; and
• Ms M could complain to us if she remained dissatisfied with the Council’s response.
34. The Council held a section 117 aftercare review on 9 July 2021. Ms D and Ms M’s psychiatrist were involved in the review and both stated Ms M should continue to receive support in her own home. The Council stated it would fund only the equivalent cost of residential care if there were alternative ways of meeting
    Ms M’s needs.
35. Ms M has been using money from the backdated remedy payment she received in February 2020 to top up the funds allocated by the Council and ICB.

Was there fault causing injustice?

36. Mrs M’s section 117 care planning is not done under the CPA framework. This is contrary to the Mental Health Act Code of Practice and the Council/ICB local agreement. The Council and ICB have not justified departing from statutory guidance and their own local agreement when planning Ms M’s care. This is fault by the Council and ICB, as both organisations are responsible for overseeing aftercare services and ensuring the aftercare meets its aims.
37. Ms M lacks capacity to decide about her health and care, and where to live. She has stated she will not agree to move into residential care. This means she would need to be deprived of her liberty in order to live in a care home. The Council also told us one of the reasons Ms M continues to receive care in her own home is because of her rights to liberty (Article 5) and family life (Article 8).
38. The Council and ICB have not provided sound reasons and evidence to support their assertion that Ms M’s needs could be met in residential care, for example:
• a properly considered and documented best interest decision confirming that residential care would be in Ms M’s best interests despite the likely effect on her mental health. In fact, the only available best interest decision record states the opposite;
• documented consideration of how residential care would meet the aim of section 117 aftercare to reduce the likelihood of readmission, given the likely effect on Ms M’s mental health if she went into a care home. In fact, the Council has stated placing Ms M in residential care is likely to achieve the opposite – an increased risk of readmission to hospital;
• given the Council acknowledges that residential care would interfere with
  Ms M’s Article 5 and Article 8 rights, an explanation of how such interference would be justified in Ms M’s case; and
• evidence that there are care homes with available places which could meet
  Ms M’s needs and reduce the likelihood of hospital readmission, could provide the equivalent to the level of supervision she receives from carers in her own home, and would accept her at the rate cited by the Council.
39. Crucially, the Council and ICB accept that the care Ms M currently receives in her own home is section 117 aftercare. There is no provision in the law, statutory guidance or the local agreement for the Council and ICB to meet only part of the cost of this aftercare in a person’s own home and expect Ms M to pay for the rest. Top-ups for section 117 aftercare can only be charged when councils arrange certain types of residential care.
40. Therefore, the Council and ICB were at fault in failing to pay for the full cost of
    Ms M’s section 117 aftercare in her own home, without:
• properly reviewing Ms M’s aftercare needs in line with the law and guidance;
• properly justifying any decision that her needs can be met elsewhere and/or at a lower cost; and
• ensuring Ms M has a documented CPA care plan (or a different type of care plan giving a good reason for not using the CPA process) stating explicitly what her aftercare needs are, and how these will be met.
41. The faults set out above caused Ms M a significant financial detriment because she had to use her own money to pay nearly £400 a week for section 117 aftercare which should have been free.
42. The Council was also at fault in failing to explain in its July 2021 letter to Ms D that people in receipt of section 117 aftercare can in some cases also qualify for CHC, for health needs unrelated to their section 117 aftercare needs. While frustrating, this has not caused Ms D or Ms M a significant injustice. This is because all of Ms M’s care is currently classed as section 117 aftercare, and she would be ineligible for CHC to meet the same needs.
43. The Council has its own operational instructions for top-up payments. The version relevant to the period of this complaint did not contain specific reference to top-ups for section 117 aftercare. However, the Council used them for both section 117 top-ups and top-ups for residential care arranged under the Care Act 2014. The instructions said: “If third party payments cease, ESCC will not be able to support the placement if it is above the maximum amount it has set for that level of care”. This was incompatible with the Government’s Care and Support Statutory Guidance because:
• under the Care Act 2014, people’s residential care costs are determined by individual personal budgets and not maximum rates councils are willing to pay;
• before moving a resident when third party top-ups cease, councils must carry out an assessment to check whether any cheaper alternative would be suitable for the person’s needs, having regard to the person’s wellbeing; and
• this means councils in some circumstances must carry on supporting placements where third party top-ups have stopped, even if the cost is greater than they would usually pay.
44. The inaccuracy in the Council’s operational instructions was fault. It could have caused injustice to others, if staff interpreted the instruction literally, without referring to the law and statutory guidance. We are pleased to note the Council updated its operational instructions in July 2022 to address these issues.

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Agreed actions

45. To remedy Ms D’s injustice, the Council and ICB will:
• immediately ensure Ms M’s live-in care is free of charge to her;
• ensure Ms M’s live-in care continues to be free of charge to her until and unless a review, carried out in line with the law and guidance, properly concludes that she no longer needs this as part of her section 117 aftercare. We would consider it appropriate for any such review to have considered the issues set out in paragraphs 36-39 above; and
• within a month of our final decision, reimburse any top-up fees Ms D has paid to date, with interest based on the retail price index.
46. To prevent similar problems affecting others, the Council and ICB will take the following actions.
• Within one month of our final decision, identify everyone in the Council’s and ICB’s areas receiving section 117 aftercare services who is paying top-ups for aftercare services.
• Within two months of our final decision, produce an action plan for checking the top-up payments are in line with the law and guidance and reimbursing people who have been charged top-ups incorrectly. The Council and ICB will aim to implement the action plan by 1 March 2023. If this timescale is not feasible, they will discuss and agree an alternative implementation date with the Ombudsmen. If the Council reviews any individual section 117 aftercare plans within this time period (for example, as part of clients’ regular review schedules), it will check for and rectify any errors with top-up payments at that point.
• Within three months of our final decision, ensure relevant staff are aware of the law and guidance that applies to section 117 aftercare top-ups and that these cannot be used for aftercare in a person’s own home.

We note when making this recommendation that the Council and ICB cover overlapping but different geographical areas.

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Final decision

47. We uphold Ms D’s complaint about incorrect charging or top-up fees for section 117 aftercare. The Council and ICB accept our recommendations. We have therefore completed our investigation.

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Investigator's decision on behalf of the Ombudsman