Summary: Mrs X complained the Council wrongly billed the estate of her relative (Mrs Q) for her residential care when she was eligible for funding under section 117 aftercare. We found fault by the Council because it did not complete a detailed section 117 assessment or aftercare plan when Mrs Q was discharged from hospital. However we consider if it had done so it would, on the balance of probabilities, have found Mrs Q did not have section 117 aftercare needs requiring residential care. The Council agreed to apologise and make a symbolic payment to Mrs X in recognition of the uncertainty caused to her by the identified fault.

The complaint

1. Mrs X complained the Council wrongly billed the estate of her relative (Mrs Q) for her residential care when she was eligible for funding under section 117 of the Mental Health Act 1983.
2. Mrs X stated this has resulted in her relative’s estate paying more than £70,000 when it should not have done so.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

8. The Ombudsman normally expects a person to complain to us within 12 months of knowing about the matter complained of. Mrs X complains about matters dating back to late 2020. I have decided to exercise discretion and investigate her concerns as she has continuously progressed the matters complained of throughout this period.

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How I considered this complaint

9. I considered evidence provided by Mrs X’s representative and the Council as well as relevant law, policy and guidance.
10. Mrs X’s representative and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

11. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
12. When someone needs residential care or specialist accommodation, this is only eligible for section 117 aftercare if it meets a need(s) resulting from their mental disorder. The person’s care plan should detail what type of accommodation would meet need(s) resulting from their mental disorder.
13. 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. 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.

NHS Continuing Healthcare Assessments

14. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
15. If a person has needs being met under section 117 aftercare but also has other health needs not related to their mental health, they can apply for CHC while receiving section 117 aftercare.

What happened

16. The following summary contains the key events in the complaint. It does not show everything that happened.
17. Mrs Q had a diagnosis of dementia and lived alone with support from carers and the dementia access team.
18. In October 2020 Mrs Q was detained under section 3 of the Mental Health Act 1983 because she had delusions, paranoia and low mood. She was admitted to hospital.
19. Case notes for Mrs Q state that before admission to hospital she was not taking her medication which increased her delusions.
20. On 16 December 2020 the Council assessed Mrs Q’s needs. It found:
• she is supported by ward staff with all her day to day needs and does not have insight into risk or keeping herself safe.
• she does not ask for food, drinks and would not be able to meet her day-to-day needs without staff monitoring and full support throughout the day.
• she continues to be delusional and needs access to staff 24 hours a day to monitor and offer emotional reassurance frequently throughout the day, to prevent her becoming distressed and presenting as she did on admission to hospital.
21. The assessment found Mrs Q had two specific needs relating to her section 117 aftercare. The first was for support with medication. The second was for support with her continuous delusional beliefs. The assessment did not provide an analysis of whether Mrs Q meet the criteria of “accommodation plus”.
22. A mental capacity assessment found Mrs Q lacked capacity around her care and support.
23. A Best Interest meeting concluded that residential care was in Mrs Q’s best interest. It said a primary health care need was not identified and a dementia residential placement would meet Mrs Q’s needs.
24. In late December 2020 the hospital discharged Mrs Q, and the council commissioned a residential care home placement for her. The Council did not complete a section 117 aftercare plan.
25. In February 2021 the Council completed a support plan review for Mrs Q. The review said she could not return home because without 24 hour care her mental and physical health could decline, resulting in readmission to hospital. The review said her care home placement should become permanent.
26. The Council began issuing invoices for Mrs Q’s care costs. Mrs X was applying to the Court of Protection for a Deputy Order. The Council said it would not pursue payment of Mrs Q’s care costs while Court of Protection proceedings were continuing.
27. In January 2022 Mrs Q said she wanted to return to her home. The Court of Protection appointed an Official Solicitor to apply for a review of the lawfulness of her deprivation of liberty at the care home.
28. In February 2022 the Council completed a care review for Mrs Q. The review found Mrs Q needed to remain in a 24 hour care setting and that she should remain in her current placement.
29. In April 2022 a meeting took place to discuss the Court of Protection proceedings. At the meeting the Official Solicitor questioned why Mrs Q was not receiving section 117 funding to pay for her care home placement. The Council agreed to investigate.
30. A care plan completed by the dementia support team in late April found Mrs Q still met the criteria for section 117 aftercare. The care plan said Mrs Q should remain in a care home environment with 6 monthly section 117 aftercare reviews.
31. In June Mrs Q’s social worker made a witness statement as part of the Court of Protection proceedings. She said that while Mrs Q had section 117 aftercare rights the Council did not consider she had section 117 aftercare needs. The statement recognised the dementia service disagreed and said Mrs Q did have section 117 aftercare needs because of her mental health, low mood and paranoia.
32. The witness statement said there would be a meeting between the dementia service, Mrs Q’s social worker and her consultant to complete a section 117 aftercare plan. If the meeting found Mrs Q has section 117 aftercare needs the Council would accept her care should have been free, and it would clear the debt for her care costs.
33. In September the Council completed a section 117 aftercare plan. The plan noted Mrs Q’s care needs and said she needed help with her:
• personal care;
• nutrition;
• domestic care;
• maintaining her physical and mental health;
• walking frame and using her wheelchair
• social activities.

These care needs would be meet by the Council and her care home.

34. The plan stated Mrs Q had section 117 aftercare needs for medication and depression and low mood. It said these needs are managed and supported by the Dementia Service, her GP and her care home and so, Mrs Q did not meet the criteria of “accommodation plus” for her care home placement.
35. In October Mrs Q’s dementia nurse visited her. She noted Mrs Q had lost weight and that her physical health needs may soon start outweighing her mental health needs.
36. In response to concerns about Mrs Q’s declining physical health her social worker filed a Continuing Health Care (CHC) checklist. The Integrated Care Board (ICB) did not act on the checklist as it said Mrs X had section 117 aftercare entitlement.
37. Mrs Q’s social worker challenged the ICB’s decision. She said that Mrs Q had section 117 aftercare rights but she had never had aftercare needs as her care home could suitably meet her needs. She also said Mrs Q can receive CHC and section 117 aftercare at the same time.
38. In response the ICB said the section 117 aftercare panel should consider Mrs Q’s case and decide if her needs result from her mental health diagnosis. It refused to act on the CHC checklist.
39. In late 2022 Mrs Q had pneumonia and was admitted to hospital. She returned to her care home placement. Following her return Mrs Q’s dementia nurse asked her doctor if he thought she still meet the criteria for section 117 aftercare.
40. Mrs Q’s doctor said she still experienced psychotic symptoms and did not always take her medication which were both reasons she was admitted to a psychiatric unit. He did not recommend discharging her from section 117 aftercare.
41. A section 117 aftercare plan completed in January 2023 said Mrs Q had social care needs for help using her wheelchair and taking her medication. The plan said she still required the input of a psychiatrist and Community Mental Health because of her depression and low mood.
42. In March 2023 Mrs X made a complaint on behalf of Mrs Q. She complained Mrs Q was eligible for section 117 funding for her care home placement.
43. Mrs Q died in May 2023.
44. The Council replied to Mrs X’s complaint. In its response it said:
• it should have completed a section 117 aftercare plan when Mrs Q was discharged from hospital. It apologised for not doing so.
• although a section 117 aftercare plan was not completed, it did assess and commission a residential placement to meet Mrs Q’s Care Act needs.
• it completed a section 117 aftercare plan in September 2022. It found Mrs Q’s aftercare needs were for help taking her medication and this was being managed by the dementia service, her doctor and the care home. It said Mrs Q’s needs were met correctly despite it not completing a section 117 aftercare plan when she was discharged from hospital in December 2020.
45. Mrs X remained unhappy and instructed a representative to complain to the Ombudsman.
46. We made enquiries of the Council. It told us:
• Mrs Q’s section 117 aftercare plan shows her section 117 aftercare needs were for help taking medication and overseeing her psychiatric needs. Her other needs are met under the Care Act and are chargeable.
• the aftercare plans show which of Mrs Q’s care needs will be meet under the Care Act. Only needs met under section 117 aftercare are non-chargeable.
• it provided Mrs Q with a residential care home placement because she had 24-hour needs arising from her physical health and not her mental disorder. The section 117 aftercare plans show her 24-hour care needs result from her social care needs and so her care home placement is chargeable.

Finding

47. Prior to Mrs Q’s discharge from hospital in December 2020, an assessment of her needs was completed. The assessment does not show how the Council concluded Mrs Q’s care home placement did not meet the criteria of “accommodation plus”. The assessment should have included these details. The lack of a suitably detailed assessment is fault.
48. The Council should have completed a section 117 aftercare plan when Mrs Q was discharged from hospital. It did not do so. This is fault.
49. The absence of a detailed section 117 assessment or aftercare plan means there is no record of whether a care home placement was necessary to meet her aftercare needs when she was discharged from hospital. As a result, Mrs X has been caused uncertainty about whether Mrs Q should have been charged for her residential care costs. This is injustice.
50. I have considered the available evidence to see what a section 117 aftercare plan, would on the balance of probabilities, likely have found if completed at the time Mrs Q was discharged from hospital. I consider it would likely have found she did not meet the criteria of “accommodation plus”. This is because: 
• the Best Interest meeting found Mrs Q needed 24 hour residential care but did not refer this being funded by section 117 aftercare. 
• a section 117 aftercare assessment was completed prior to Mrs Q being discharged and it identified she needed support with medication and for her continuous delusional beliefs. There is nothing to suggest she required a specialised residential care placement to meet those needs. 
• the criteria for accommodation to form part of a person's section 117 aftercare package is set out in paragraph 13. I do not consider the available evidence shows Mrs Q’s case meet that criteria. 
51. The care review of February 2022 found Mrs Q needed support to help her with her needs which included maintaining appropriate nutrition, personal care and dressing. It also explained she did not have any insight into her care and support needs. The care review shows Mrs Q had Care Act needs which required a placement in a 24-hour residential care home. Therefore I consider that, on the balance of probabilities, if the Council had completed a section 117 aftercare plan for Mrs Q at this time it would have found she did not meet the criteria of “accommodation plus”.
52. In September 2022 the Council completed a section 117 aftercare plan for Mrs Q. The dementia service, Mrs Q’s social worker and her doctor were all consulted and so I am satisfied the plan was informed by all the relevant information. Therefore there are not grounds for me to question the conclusion that Mrs Q did not meet the criteria of “accommodation plus”.
53. I note information provided by the dementia service in June 2022 stated that Mrs X continued to have section 117 aftercare needs. However it was for the decision maker to decide what weight to give the information gathered when compiling the aftercare plan. The February 2022 care review also identified clear Care Act needs for Mrs Q.
54. Also I note that from September 2022 onwards Mrs Q’s physical health began to decline. In October it was noted that her physical needs were beginning to overtake her mental health needs. Mrs Q’s physical needs are not eligible for section 117 funding and so a care home placement to meet these needs would be chargeable.

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Agreed Action

55. Within one month of my final decision the Council will:
• Apologise to Mrs X for the fault I have found, and the time and trouble caused to her in pursuing her complaint. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £500 in recognition of the uncertainty caused to her by the Council’s failure to complete a detailed section 117 assessment explaining why residential care did not specifically meet Mrs Q’s aftercare needs.
56. Within three months of my decision the Council will identify the reasons why a section 117 aftercare plan was not completed when Mrs Q was discharged from hospital and explain what action it will take to prevent a recurrence of this fault
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I have completed my investigation. There was fault by the Council causing injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman