Summary: Ms B complained that Devon Partnership NHS Trust, Devon County Council, and NHS Devon Integrated Care Board, did not provide her with adequate and timely support in applying for benefits. We found there was a delay in supporting Ms B with benefits. This meant Ms B missed some benefit payments, and caused her avoidable distress and uncertainty. The Council, ICB and Trust have agreed to take action to address this.

The complaint

1. Ms B complains about a lack of support from Devon Partnership NHS Trust (the Trust) with applying for benefits while she was in hospital between December 2019 and May 2020. Ms B also complains that from May to October 2020, after she had left hospital and was receiving Section 117 aftercare, Devon County Council (the Council) and NHS Devon Integrated Care Board (the ICB) did not support her with applying for benefits. Ms B also complains she was not given clear information about benefits during this period. Ms B says support with benefits was part of her Section 117 aftercare plan, but there was confusion about who was supposed to help her with this.
2. Ms B says this led to a delay in her application for benefits and that because of this, she missed eight months of universal credit payments. She told us this was vital income, and that not receiving benefits during the period complained of has an ongoing financial impact for her.
3. As a result of her complaint to the Ombudsmen, Ms B would like financial remedy for the benefits she says she should have received during this time. Ms B says this amounts to approximately £2,800.

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The Ombudsmen’s role and powers

4. 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).
5. 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.
6. 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

7. During my investigation of this complaint, I considered information from Ms B and the Trust, Council and ICB.
8. I also considered the relevant legislation and guidance.
9. Ms B, the Trust, Council and ICB had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Section 117 Aftercare

10. 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 person’s 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 person’s mental disorder under Section 117 cannot be charged for. This is known as Section 117 aftercare.
11. 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 treatment for the mental disorder.

12. 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.

Delegating functions - NHS Act 2006

13. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.  
14. The Ombudsmen will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and council work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault they will attribute it to the partnership as a whole and expect each body to contribute to any proposed remedies.
15. In relation to Ms B’s complaint, there is a Devon Wide Joint Protocol in place for Section 117. This sets out the statutory framework and procedure for managing patients to whom Section 117 applies. The Protocol says the Council is jointly responsible with the ICB for the provision of aftercare services under Section 117. The Protocol says the Trust is responsible for providing mental health care to people eligible for Section 117 care living in Devon.

Care Programme Approach (CPA)

16. 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). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.

COVID-19

17. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Trust, Council and ICB followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.

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What I found

Analysis

Hospital Admission

18. Ms B went into hospital in October 2019. In December 2019, the Trust discussed discharge planning with Ms B, but noted she was “not engaging with care planning and [her] accommodation needs” at that time. In January 2020, an occupational therapy review documented Ms B would need support to apply for benefits.
19. The Trust carried out a care plan review in February 2020, while Ms B was in hospital. In the section on safe discharge from hospital, the Trust noted Ms B had not engaged with her care plan and the Trust was “unable to attain [her] financial situation and what [her] needs are with this”. The Trust recorded that when asked about whether she wished to apply for benefits earlier that month, Ms B had initially said she did not want to do so. Later in February 2020, the Trust documented Ms B was “still declining to engage with claiming benefits, we will continue to attempt to engage with [her] with this as this will be something [she] will need for a safe discharge”.
20. Among the goals documented for Ms B at that time was “to be claiming all the relevant and appropriate benefits”. To achieve this, the plan was for Ms B to meet the Ward Discharge Facilitator “to have a look at the benefits [she was] entitled to and help [her] claim these.”
21. Two further multi-disciplinary care plan reviews took place while Ms B was in hospital, in March and April 2020. However, there was no update to the discharge plan about benefits. A note from a family meeting in April 2020 says Ms B’s family asked what was happening with benefits. It is documented the Trust agreed to follow this up in early May, and would contact the Department for Work and Pensions (DWP) for support with setting up the application.
22. In responding to Ms B’s complaint, the Trust said that while Ms B’s care involved several staff, “there was no identified lead” in terms of who was going to help with her benefit application. It also said “appropriate services, including finances”, are part of care planning and should be in place on leaving hospital. The Trust response went on to say ward staff understood that staff at the residential placement would take over responsibility for helping Ms B with applying for benefits. However, the Trust accepted the care plan did not clearly assign responsibility for providing this support.
23. The Trust apologised for “the ambiguity” around who would support Ms B to apply for benefits, but said it could not offer compensation payments through the complaints process.
24. The Trust said that while on the acute ward, “the Discharge Facilitator was responsible for coordinating the support, and once transferred to [the residential placement], this responsibility transferred over to them”. Its Inpatient Admissions, Transfer and Discharge Policy says all discharge planning should include arrangements for “personal support (budgets)”. It also says Future Support plans, completed before leaving hospital, should include support with budgeting and benefits.
25. The records show the Trust considered Ms B’s need for support with benefits as part of discharge planning. The Trust had acknowledged that Ms B would need help with applying. This was in line with the Mental Health Act Code of Practice, which says aftercare planning should begin as soon as the person goes into hospital. This is to ensure appropriate aftercare services are put in place in good time for when the person leaves hospital. However, Ms B left hospital without her benefits application being completed, even though the Trust had said she would need this for a safe discharge.
26. As noted above, the records indicate Ms B did not engage in discussions about benefits during February 2020. However, I have not seen anything in the hospital records after that, between the end of February and Ms B’s discharge in May, to indicate the Trust held further discussions with her about benefits, or tried to encourage Ms B to engage with this while she was in hospital. While the reason for this is not clear from the records, the Trust’s response to the complaint said that remote cover was provided to the ward while COVID-19 restrictions were in place, after 16 March 2020. The response also said “Although COVID-19 is not the reason why [Ms B’s] application was delayed, it did play a part.”
27. I recognise the events complained of took place while COVID-19 restrictions meant that face to face discussion on the ward may have been limited. I also recognise the Trust said in its response that COVID-19 had an impact on care and service delivery. However, the Trust had already documented that Ms B would need further support to help her engage with the benefits application while in hospital, but the records indicate she did not receive support with this in hospital after February 2020.
28. I recognise Ms B considers that she would have been eligible for benefit payments from January 2020, when the Trust first recorded she would need support with applying. However, we cannot say from the information we have, whether Ms B would been able to engage with any discussions and provide her National Insurance number at an earlier stage while in hospital. However, the lack of discussion about benefits with Ms B after February leads to uncertainty on this point for Ms B. I have made recommendations to address this, below.

Section 117 aftercare

29. On leaving hospital in May 2020, Ms B went to a residential placement where she received Section 117 aftercare. Ms B’s Section 117 aftercare plan included support with benefits as one of her eligible needs. The care plan said actions to be taken included liaising with Ms B’s social worker to see if they could support setting this up. The aftercare plan says the Trust community team, support staff, and social worker were responsible for supporting Ms B with benefits. Therefore, no particular role was identified as having responsibility for this. The Devon wide joint protocol says the “lead worker/Recovery/Care Co-Ordinator/Case Manager will ensure the person subject to section 117 accesses benefits to which they are entitled”.
30. In line with the Code of Practice, the care coordinator is responsible for preparing, implementing and evaluating the care plan. However, in Ms B’s Section 117 plan, responsibility for supporting her with benefits was not clearly assigned. The Trust acknowledged this in its response to the complaint. This is likely to have led to confusion for Ms B as to who should have been helping her with her benefits application, and potentially among practitioners as well.
31. On 11 May, Ms B gave her consent for her national insurance number to be shared with staff at the residential placement, so they could support her with her application. Ms B then had regular calls with her care coordinator, but there is no record of benefits being discussed. In June, the care coordinator contacted the residential placement for an update on the benefits application. It is not clear from the records what happened after this. In late July, the care coordinator spoke to the accommodation staff about benefits, and it was recorded they were completing the application form with Ms B.
32. Staff at the residential placement supported Ms B to apply for personal independence payment (PIP) in early July, but the notes say Ms B was not eligible for this benefit. It is then recorded there were some difficulties completing the online universal credit form. The care coordinator asked the residential placement to contact universal credit to resolve this. At the end of August, the care coordinator contacted the placement to say they were concerned Ms B “had had no money since leaving hospital and starting the placement”. Staff at the accommodation then followed this up by calling universal credit daily, until the application was completed in early September.
33. Ms B was paid universal credit from October 2020. The payments were backdated by one month, covering 1 August 2020 onwards.
34. Ms B’s first payment was a standard allowance payment of £342.72. Ms B did not receive an award in October (Ms B’s representative told us it is not clear why this happened). Ms B then received a further standard payment in November of £338.55, and two standard allowance payments in December. At that time, Ms B received a second award of £680.47, made up of a standard allowance payment, plus a Limited Capability for Work and Work-Related Activity award worth £341.92. Ms B continued to receive the additional Limited Capability payment for the next few months after this.
35. In its response to the complaint, the Trust acknowledged a lack of clarity around who was responsible for supporting Ms B with benefits. However, it said that once Ms B was discharged from hospital, responsibility for this passed to the provider of the Section 117 accommodation she was living in. However, Ms B’s care plan assigned responsibility to the Trust STEP team, support staff, and social worker, not solely to the accommodation provider, meaning it was unclear who specifically should support Ms B with this. As noted above, the records do not provide great detail about what happened after Ms B provided her national insurance number in early May, and her benefits application being completed in September. It is apparent the residential placement followed this up regularly in August, but before that it is not clear why there was a delay.
36. Ms B said that missing out on these payments has had an ongoing impact on her, as she is still unable to work. She explained therefore the benefit payments for that period are vital to her as she still relies on universal credit.
37. As Ms B provided her national insurance number in early May, and was found eligible for universal credit in August, we can say on the balance of probabilities that it is likely she would have been paid universal credit from May, had her application been submitted at that time with the appropriate support, as set out in her care plan. However, this did not happen until September. Therefore, delays in providing support, and confusion over who was supposed to help Ms B with this as part of her Section 117 aftercare, are likely to have meant she missed out on universal credit during this period. I also recognise that this is likely to have caused distress to Ms B.
38. I am not able to say whether Ms B would have received the additional Limited Capability payment from May, as this was not paid until December. However, my view is that she missed the standard allowance payments for three months from May to July 2020 because of delays in providing support to her as part of her Section 117 aftercare.

Summary

39. There was fault by the Trust in a lack of support to Ms B with her benefits application while she was in hospital after February 2020, causing uncertainty to Ms B. While the Trust has appropriately apologised to Ms B, I consider there are additional actions the Trust should take, and these are set out in the agreed action section, below.
40. There was also fault by the Council and ICB, in terms of a lack of support to Ms B with her benefits application while she was receiving Section 117 aftercare. I have made recommendations to address this, below.

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Agreed actions:

41. I recommended that within one month of the final decision on this complaint, the Trust:

• Makes a symbolic payment of £300 to Ms B, in recognition of the avoidable uncertainty caused by lack of discussion and support around benefits applications between the end of February 2020 and her discharge from hospital in May 2020; and

Within three months of the final decision on this complaint, the Trust:

• Takes steps to prevent recurrence by reviewing relevant discharge policies, and providing guidance or training to staff.

42. I recommended that within one month of the final decision on this complaint, the ICB and Council:

• Pay Ms B, between them, £1028.16 (to cover the three months of Universal Credit at the standard allowance rate for May-July 2020) which we found she is likely to have received were it not for the delays;
• Make an additional symbolic payment to Ms B of £300, shared between the ICB and Council, in recognition of the avoidable distress caused by delays in supporting her with benefits during this period; and

43. I recommended within three months of the final decision, the Council and ICB:

• Take action to ensure that responsibilities set out in Section 117 aftercare plans are clearly assigned, to prevent recurrence of the fault identified in this complaint.

44. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

45. For the reasons explained in the Analysis section above, I have upheld Ms B’s complaint. The Trust, Council and ICB have agreed to provide reasonable remedies for the injustice caused. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman