Summary: We found fault by the Council and ICB as they failed to put in place a contract or similar document setting out Mrs J’s rights and obligations in respect of a care home placement. This placement is provided to Mrs J as part of her entitlement to free aftercare services under Section 117 of the Mental Health Act 1983. The Council will put a suitable document in place that sets out Mrs J’s rights and obligations as a resident of the care home. The Council will reimburse Mrs J for the professional fees she incurred in pursuit of this matter.

The complaint

1. The complainant, who I will call Mr R, is complaining on behalf of Mrs J, for whom he acts as a court-appointed Deputy for property and financial affairs.
2. Mrs J receives free aftercare services under Section 117 of the Mental Health Act 1983. Responsibility for providing or arranging Mrs J’s Section 117 aftercare rests with East Riding of Yorkshire Council (the Council) and North Yorkshire Integrated Care Board (the ICB).
3. In 2011, Mrs J began living in a care home. This was included within her Section 117 entitlement.
4. Mr R complains that the Council and ICB have failed to provide Mrs J with a contract for her stay in the care home. Mr R says this means Mrs J has been left without clarity about her rights and obligations in respect of her stay in the care home.

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The Ombudsmen’s role and powers

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. 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

8. In making my final decision, I considered information provided by Mr R and the Council. This included relevant documentation and records. I also considered comments from all parties on my draft decision statement.

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What I found

Background

9. Mrs J was entitled to Section 117 aftercare as a result of a detention under Section 3 of the Mental Health Act 1983 in 2011.
10. Later that year, the professionals supporting Mrs J decided that her care needs could only be met through 24-hour residential care. Mrs J moved into the care home in January 2012. The care home is owned and run by the Council. Mrs J’s placement was funded by the Council as part of her section 117 aftercare entitlement.
11. In 2014, Mrs J was found to lack capacity to make decisions about her finances.
12. In August 2020, the Court of Protection appointed Mr R as Mrs J’s Deputy for property and financial affairs.
13. At the time of writing this decision statement, Mrs J was still resident in the care home.

My analysis

14. Mr R contacted the Council to request a copy of a contract (or similar document) setting out Mrs J’s rights and obligations in respect of her residence in the care home.
15. The Council said there is no contract between Mrs J and the care home. It explained that, when placing a person in a residential care home, the Council would ordinarily sign a contract with that care home. The Council said the care home would also be expected to agree to the Council’s Standard Terms of Business. However, as Mrs J was placed in a Council-owned care home, there was no contract and the care home was not expected to sign up to the Standard Terms of Business.
16. The Council explained that Mrs J’s care plan sets out the care she receives in the care home. In addition, the Council said it has a Contract Evaluation Review Tool (CERT) for Mrs J. This document sets out the cost of the placement and who is responsible for the fees.
17. Section 19 of The Care Quality Commission (Registration) Regulations 2009 sets out that “where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf

• (a)specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and
• (b)including, where applicable, the form of contract for the provision of services by the service provider”.

18. This section of the Regulations does not apply directly to Mrs J. This is because she does not pay for her care in the care home as this is included in her Section 117 entitlement. Nevertheless, the Regulations establish a principle whereby a service user should be given clear information about the service they can expect to receive. This includes detail about the terms and conditions attached to the care provision.
19. I recognise Mrs J’s care plan sets out her care needs and how these will be met. I also acknowledge that the funding arrangements are appropriately documented in the CERT form.
20. However, the care home is not required to sign up to the Council’s Standard Terms of Business. This means there is no detailed record of Mrs J’s rights and obligations in respect of her placement, nor any specific information about the service she can expect to receive from the care home.
21. This was fault by the Council and ICB, which share the duty to provide or arrange Section 117 services for Mrs J. This has caused unnecessary confusion and put Mr R to avoidable time and trouble in pursuit of this matter on Mrs J’s behalf.

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Agreed actions

22. Within two months of my final decision, the Council will produce a contract, or similar document, setting out Mrs J’s rights and obligations in respect of her placement in the care home. This will reflect the Council’s Standard Terms of Business as closely as possible.
23. Mr R will produce a detailed breakdown of the fees for the Council’s attention as soon as possible. The Council will then reimburse Mrs J for the fees she incurred as a result of Mr R being required to pursue this matter in his professional capacity as her Deputy.

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Final decision

24. I found fault by the Council and ICB with regards to their failure to provide Mrs J with detailed information about her rights and obligations in respect of her placement in the care home.
25. The actions the Council has agreed to undertake represent an appropriate and proportionate remedy for the injustice arising to Mrs J from this fault.
26. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman