Summary: Ms A complained a local authority and NHS organisations failed to provide her with the care she needs over several years. She also complains they failed to adequately adapt the way it assessed her needs. We have not found fault. There is evidence the organisations have tried to adapt to meet Ms A’s needs and have offered a range of services to support her.

The complaint

1. Ms A is autistic and is also eligible for aftercare support under section 117 (s117) of the Mental Health Act 1983 (the MHA). Lincolnshire County Council (the Council) and NHS Lincolnshire Integrated Care Board (the ICB) share responsibility for providing Ms A with s117 aftercare. Lincolnshire Partnership NHS Foundation Trust (the Trust) also offered and provided services to Ms A.
2. Ms A complains that, since early 2021, the Council, the ICB and the Trust have failed to provide her with the care she needs. Ms A said the services the organisations offered to her are inappropriate. Ms A said there is no autism service in the area and the organisations have continued to refuse her requests to transfer responsibility for her care to another area.
3. Ms A also complains the organisations have failed to make reasonable adjustments to the s117 assessment process for over two years.
4. Further, Ms A complains the organisations failed to respond to her complaints about these matters and unreasonably refused to reply to her emails. Ms A said this is disability discrimination.
5. Ms A said that, because of these failings, she does not have acceptable care or support to meet her needs. Ms A said she has taken multiple overdoses because of the lack of suitable help and has also tried to have herself sent to prison as a way of seeking support. Ms A said the actions of the organisations have caused her trauma.
6. In bringing her complaint to the Ombudsmen Ms A said she would like:

• explanations for the organisations’ decisions about her care, and
• responsibility for her care to transfer to another authority which has suitable services for people with autism, and to receive suitable help.

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The Ombudsmen’s role and powers

7. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
8. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
9. When investigating complaints, if there is a conflict of evidence, we 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. 
10. We cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
11. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. 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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
12. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our 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

13. I considered evidence provided by Ms A and exchanged email correspondence with her. I sent enquiries to the Council, the ICB and the Trust and considered the papers they sent in response. I also considered relevant law, policy and guidance.
14. Ms A and the organisations had a chance to comment on my draft decision. I considered all the comments I received in response before making a final decision.

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What I found

Legislation and guidance

The Autism Act 2009

15. The Autism Act 2009 required the government to publish an adult autism strategy and to issue associated statutory guidance by the end of 2010. The Autism Act placed a duty on local authorities and NHS bodies to follow this guidance.
16. The Department of Health issued “Statutory guidance for Local Authorities and NHS organisations to support implementation of the Adult Autism Strategy” in March 2015. Local authorities and NHS bodies must not only take account of the guidance but also follow the relevant sections or provide a good reason why they are not doing so. This guidance says that organisations should ensure staff working with autistic adults have demonstrable knowledge and skills to use appropriate communication. The guidance also highlights the duty and importance of making reasonable adjustments to meet individual needs. Section 6.6 provides information on good practice on delivering reasonable adjustments effectively.

Care and Treatment Reviews (CTRs)

17. CTRs are for people with a learning disability and autistic people who have been admitted to a mental health hospital or who are at risk of admission. They are undertaken by commissioners and carried out by an independent panel of people. The aim of a CTR is to ensure that the person’s care and treatment is delivered in the least restrictive way. This includes ensuring that the person is not admitted to hospital unnecessarily or if the young person requires admission to ensure that their stay is as short as possible.

The Mental Health Act 1983

18. Under the MHA, 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 MHA gives doctors powers to detain a patient for a maximum of six months at a time.
19. The Department of Health produces the Mental Health Act 1983: Code of Practice (the Code) to accompany the MHA. This provides guidance for professionals on how to implement the MHA in practice.
20. Under s117 of the MHA local authorities and integrated care boards (ICBs) have a duty to provide or arrange free aftercare services for people who have been detained under s3 of the MHA.
21. S117 aftercare services must meet a need arising from, or related to, that person’s mental condition. They must also have the aim of reducing the risk of the person’s mental condition worsening and thereby reduce the risk of further hospital admissions.
22. The Code encourages local authorities and ICBs to “interpret the definition of after-care services broadly”. (Section 33.4)
23. Care planning for s117 aftercare should be via the Care Programme Approach (CPA). Under the CPA, the person must have a comprehensive care plan and a named care coordinator who is responsible for ensuring the care plan is prepared, carried out and reviewed. The care coordinator should use a CPA care plan to document aftercare plans. The care plan should specify the services funded through s117. The Code notes that care planning, including aftercare planning, requires a thorough assessment of the patient’s needs and wishes. It notes this is likely to involve consideration of a range of mental health, physical health and social care factors. (Section 34)
24. The Code also includes guidance on supporting autistic people. It says that professionals with specialist expertise and communication skills should be involved in care planning for autistic people. (Sections 20.20 and 34.21)

The Equality Act 2010

25. The Equality Act 2010 says an individual or organisation that provides a service to the public, such as councils, must not treat someone worse just because of one or more “protected characteristics”. Protected characteristics include people with disabilities.
26. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable it must make them.
27. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010.
28. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can decide whether an organisation has properly taken account of an individual’s rights in its treatment of them.

Summary of events

29. In late 2020 professionals detained Ms A under section 3 of the MHA. Ms A left hospital in January 2021.
30. The Trust’s Transforming Care service and a Community Mental Health Team (CMHT) began attempting to work with Ms A, to create a care plan and look at what support might be possible and helpful. (“Transforming Care” is a national programme that aims to make health and care services better so that more people with a learning disability or autism can live in the community, with the right support, and close to home. The Trust’s Transforming Care team provides a liaison service which supports access to mainstream health services and aims to ensure reasonable adjustments are made.)
31. In the spring of 2021 the organisations commissioned a care provider to visit Ms A 17 hours each week, to support her with a variety of tasks. Support workers from the care company visited Ms A for a short time. However, Ms A reported that she could not cope with the visits and the visits ended.
32. In the middle of 2021 Transforming Care offered to arrange two visits a week from its staff for six- to eight weeks. It said the sessions would aim to provide Ms A with some insight into what her diagnosis of autism meant for her. In the following months consideration was given to whether a cleaner would be helpful to Ms A and whether periods of respite care would be useful.
33. In late 2021 services agreed to fund ten hours of support at home for Ms A, from a different care company. Ms A wrote to her social worker and gave an account of how much support each week she thought would be more realistic for her needs. A professional replied and said they could get Ms A’s care plan changed and extra hours added, to match what Ms A had said. They said they could discuss how to use the hours.
34. In early 2022 a member of staff from Transforming Care, who had been working closely with Ms A, said that she could no longer support Ms A. Transforming Care said Ms A could speak to other staff.
35. By the middle of March 2022 Ms A’s support continued to consist of:

• support from the Transforming Care service,
• 16 hours of support per week from home care workers.

36. However, Ms A could not use all the assigned hours of home support. A professionals meeting around the same time noted that staff had made a referral to the ICB’s Out of Area Treatments panel for “specialist autism support”. It noted the panel had declined the referral and, since then, a referral had been made to the Trust’s Personality and Complex Team (PACT).
37. In May 2022 staff advised Ms A they would not arrange the community CTR she had asked for. Staff said the ICB felt the CTR process would not be able to achieve the changes Ms A wanted and would cause Ms A distress. However, staff said it was already offering forms of support which should help Ms A to remain in the community in the least restrictive way. Staff also told Ms A that it would not be possible to move responsibility for Ms A’s care to another area. Staff said it remained open to Ms A to work with the CMHT and Transforming Care to explore her strengths and weaknesses. The Trust offered to challenge the ICB’s decision not to agree to a referral to an out of area service. It also said it would support the option of arranging an advocate for Ms A.
38. In late May 2022 the Transforming Care Team said one of its doctors and a clinical lead would support Ms A, rather than one of its social workers.
39. In the middle of 2022 Ms A asked professionals whether a s117 needs assessment had ever been completed. Ms A said her mental health was worse now than before she’d been admitted to a mental health inpatient service in 2020. The ICB replied and said it had not completed a s117 needs assessment as Ms A had not felt able to engage in that process. The ICB said it had agreed to fund care workers to support Ms A at home in the absence of an assessment.
40. Ms A told the ICB that any assessment would need to be adapted to meet her needs. She said she would need “clear written questions sending to me with time to answer them. If you expect me to tell you what my needs are then the answer will be the same as always: I don’t know, that’s why I need someone who understands autism to help me figure out my needs/what might help”. Ms A said she still did not know how to cope with care and, because of that, was not using all her allocated hours of support. Later, Ms A told the ICB she needed the ICB to “send me the section 117 needs assessment questions, in a clear font with plenty of white space/no walls of text. The questions need to be specific, not open, preferably with examples of what kinds of things you expect as…answers. Also the questions preferably spaced out so as not to feel overwhelmed by lots of questions. For any questions that I can’t answer/need help identifying my needs, I will need an autism specialist to help me identify my needs, which I have needed all along and I would hope would be included in my aftercare”.
41. At the start of July 2022 the ICB told Ms A they would be happy to meet her to work through the s117 assessment “at your pace in a way that best suits you”. In the middle of the month the ICB told Ms A they would make an application for funding for an advocate with a specialism in autism.
42. Ms A continued to ask for responsibility for her care to be transferred to another area. The ICB told Ms A this was not a possibility. Ms A told the ICB she did not consider an advocate would be helpful.
43. Toward the end of July 2022 the ICB sent Ms A an amended s117 assessment. It asked her to let the ICB know if she would like to proceed in arranging to complete the assessment and, if so, how she wanted to do it.
44. Around the same time a professionals meeting noted a referral had been made to the Out of Area Treatment panel for “Autism specific therapeutic work”. The referral said there was not an autism specific service in Lincolnshire and those with specialist knowledge did “not case hold or have the time to give to this complex case.”
45. In August 2022 Ms A was detained under s2 of the MHA. In early September 2022 a professionals meeting noted that staff had made a referral to the Out of Area Treatment panel for four things:

• an advocate,
• life planning,
• an autism specialist therapist who could see Ms A weekly, and
• support with emails.

46. In the middle of the month a meeting noted the panel had “agreed an advocate, life planning and a psychiatrist” but noted these may take time to arrange.
47. While Ms A was an inpatient a CTR took place, toward the end of September 2022. It noted a plan for community and inpatient teams to arrange a professionals meeting. The aim of this would be to write a plan on how services would support Ms A in the community. It also noted a plan to look at whether Ms A could receive any specialist support to help her understand how her diagnosis of autism affected her and how it impacted on others. The CTR also said the ICB case manager should work with Ms A to create a structured and robust life plan which, in turn, could identify any specialist needs Ms A had or any specialist treatment she needed.
48. In October 2022 the ICB asked Ms A to let them know if she wanted them to arrange an advocate from another area.
49. In November 2022 Transforming Care emailed Ms A and said it had started a s117 assessment “with some questions, which you completed. However, your time on the ward meant that we held off sending other questions. We are happy to carry on with the next set of questions, as you have had some time since discharge.” Transforming Care asked Ms A to let them know if she was ready for more questions.
50. Around the same time the Trust noted that Ms A was “reported to have declined [the out of area] support offered (advocate, specialist psychiatrist, life planning)”. However, later in the month staff noted it had been a misunderstanding that Ms A did not want to pursue life planning.
51. In December 2022 the ICB told Ms A it had identified two providers that wanted to complete an assessment “in the hope that they can better get to understand your needs and get to know you”. The ICB asked Ms A how best to complete the assessments.
52. Also in December 2022 Transforming Care offered to visit Ms A to discuss a communication guide for care workers. It said this would include:

• things that Ms A did not like people saying,
• tasks Ms A needed support with, and,
• writing tasks down in the order Ms A liked them to be done.

Transforming Care said this would form a plan for the care workers to follow.

53. In the middle of January 2023 the ICB contacted Ms A and noted that a s117 assessment had previously been sent to her and that two members of staff had started working through the questions with her. The ICB said it “would like to start this from fresh and work through each section so that I can ensure that we capture all of your health needs in relation to 117 aftercare.” The ICB said they could send a paper copy of the assessment to Ms A and asked if Ms A would prefer to write things down on each section, and then for the ICB to collect it when it was complete and then type it up for Ms A to check.
54. Ms A replied and said the s117 assessment needed to be adapted more effectively. She said she could not answer the questions on the previous document that had been shared with her. Ms A said the questions needed to be clear and specific, with examples of the sort of thing that was expected as an answer. Ms A said the process could be done via email and needed to be done gradually.
55. The ICB told Ms A a potential care provider could come and see her and would want to cover:

• what support Ms A wanted from the provider,
• what subjects Ms A was uncomfortable with,
• what issues Ms A wanted help with, and
• what Ms A enjoyed doing.

56. Ms A said the topics the ICB had suggested were too wide and open. She reiterated that she needed “clear, specific questions in advance, that I can reply to in writing in my own time”. The ICB said they would send each section of the s117 assessment to Ms A for her to add to in her own time. It also removed lengthy paragraphs. The ICB offered to collect each section as she completed them.
57. Ms A continued to complain that the assessment had not been adequately adapted to meet her needs.
58. At the end of January 2023 the ICB began contacting third party organisations to ask whether they had capacity to complete an independent review of Ms A’s care.
59. At the start of February 2023 another social care provider submitted a proposal to support Ms A for 14 hours per week. Ms A maintained that she would not be able to cope with the support they were offering. Support from this provider “fell apart” on the first day.
60. Also in February 2023 the ICB noted that:

• the Transforming Care Team had made a referral to the Out of Area Treatment Panel for an autism specific therapist, and
• an independent review would be completed by someone not known to the ICB.

61. Toward the end of February a provider confirmed it could complete an independent review of Ms A’s care. It told the ICB the cost and the ICB said it would seek financial approval. The ICB wrote to Ms A about this but Ms A asked the ICB to put a stop to it. She said it would not be a truly independent and fair review as it would not properly involve her.
62. In March 2023 the ICB sent another version of a s117 assessment to Ms A. Ms A provided some responses but continued to tell the ICB that some of the questions were too open. The ICB asked for support from Transforming Care on what they could do. In late May 2023 Transforming Care suggested some possible changes to the assessment.
63. At the end of May 2023 Ms A told the ICB things were not working out with her autism advocate. Ms A said she could not deal with emailing the advocate and so it was of no help to her. The ICB told Ms A that if she had an alternative advocate in mind it could approach the relevant funding panel to seek approval for it. Ms A maintained that she could not see how an advocate was meant to help her.
64. In June 2023 Ms A asked for a referral to be made to PACT for trauma therapy. PACT wrote to Ms A and said it felt it might have treatment pathways that could be helpful to her. However, it said it wanted to understand “from you what your goals are and what you would hope for from treatment”. PACT asked Ms A to meet one of its consultant psychiatrists to help understand her needs.
65. Toward the end of June 2023 the ICB sent another s117 assessment to Ms A. It had included responses that Ms A had provided to date. It noted that it had added further questions throughout the document for Ms A to answer in her own time. Ms A maintained that the questions on it were too open for her to be able to answer, and that the limited “tick box” responses the ICB had included were too limiting. Ms A said her needs did not happen on a set schedule and she did not know how to answer questions about how frequently things occurred or she needed support. Ms A said the form was impossible to complete in its current format.
66. In the middle of July 2023 a community CTR took place. It noted an intent to undertake a person‑centred assessment which would set out the care and therapy Ms A needed.
67. In the middle of August 2023 PACT wrote to Ms A. One of its psychiatrists had reviewed her in clinic a month earlier. PACT said they had collectively concluded that “an out of area treatment by a specialist autism service is most likely to be helpful for you.” A manager said they had made a referral to the Out of Area Treatment Service panel and “will be strongly advocating for a suitable provider to be identified”. The manager said they could not promise what the outcome of the panel would be. It said all it could do was “help [the panel] understand why [the Trust] are not best placed right now”. The manager thanked Ms A for having engaged with PACT and said it had helped them “evidence that no local services are best equipped to meet your needs at the moment”.
68. Toward the end of August 2023 the ICB responded to PACT’s referral. It said it had real concerns about going out to out-of-area providers due to the complexity and risks of the case.
69. In late September 2023 PACT wrote to Ms A again. A manager said they had met the Out of Area Treatment Service panel. The manager said the panel was “still very happy to fund a specialist advocate for you”. PACT said they hoped Ms A could “identify someone who you think is helpful and can get along with”. However, the manager also noted that the panel continued “to feel that your needs would be best met in [the Trust]”. PACT said they had done their best to advocate for Ms A. PACT said “there really isn’t a service available that would fulfil the long term support that you would like”. However, the manager said the support did “exist through social care providers who can be trained” but recognised Ms A had not had good experiences with providers in the past. PACT acknowledged it would not be a perfect service for Ms A but said it could offer support to her through a bespoke pathway. It said it would be able to help with “understanding and managing emotions and feeling more confident in how you communicate with others”. PACT said it would be happy to work alongside Ms A’s advocate and would be happy to seek advice from Transforming Care. PACT offered Ms A weekly sessions.
70. In November 2023, in a complaint response, the ICB told Ms A it had made appropriate efforts to support Ms A to complete the necessary s117 assessment paperwork. It said it could not meet Ms A’s requests for adjustments to the assessment.
71. At the start of February 2024 a professionals meeting took place. It discussed the support Transforming Care, the CMHT and PACT had offered to Ms A. The professionals agreed it would be appropriate to begin thinking about discharging Ms A from their services as they had not been of any benefit to her. In April 2024 PACT and the CMHT discharged Ms A from their services on the basis that Ms A had not found them helpful.
72. In July 2024 the ICB emailed Ms A and attached the s117 assessment that had been started but never finished. The ICB said it would need to be complete before it could be shared with providers. The ICB asked Ms A to say if she wanted to meet in person or over Teams to finalise the assessment. A team manager reiterated this offer in October 2024.

Analysis

Attempts to assess Ms A’s needs

73. The MHA Code of Practice states that a patient’s need for s117 aftercare should be assessed, and an aftercare plan put in place, before they leave hospital.
74. During Ms A’s detention under s3, in late 2020, a CTR took place. This noted that previous attempts to complete a social care assessment had not been successful. It said that that detailed assessments would be necessary once staff had built up trust with and engagement from Ms A. The intent was to then use these assessments to work out what interventions might be necessary and helpful.
75. Ms A’s detention in hospital was traumatic for her and attempts at assessing her needs while she was an inpatient did not produce a clear understanding of her needs. In this context, the decision to discharge Ms A without having completed a s117 plan was pragmatic and appropriate. It helped to avoid unnecessarily extending Ms A’s detention and inpatient stay. And there was an intent to continue the necessary assessments in the community.
76. The Trust’s Transforming Care service and the CMHT began attempting to work with Ms A when she left hospital. They aimed to create a care plan and look at what support might be possible and helpful. As such, while staff may not have described the assessment as “a s117 assessment”, it is apparent that the aim of the assessment was the same as if they had: it aimed to identify what types and levels of support would be helpful and workable for Ms A. Therefore, while some support was put in place before staff began actively discussing “a s117 assessment” it does not appear anything was notably different on a practical level. Throughout the entire period the professionals had wanted to base a care plan on a thorough assessment of Ms A’s needs. This, in turn, is in line with established practice.
77. There is evidence that professionals have tried to adjust and adapt the assessment process for Ms A. I understand they have never been able to do so to Ms A’s satisfaction.
78. The core issue is that the professionals need information which Ms A finds it impossible to provide. In order to agree, plan and commission care for Ms A the organisations need to be able to document an understanding of Ms A’s needs and how any proposed care and support will help her. They need this to allocate an adequate amount of resources to Ms A’s care, which they can transparently justify as appropriate and proportionate. This means that the professionals must get an understanding of the “average” type and amount of support Ms A is likely to need throughout any given week. This, in turn, means trying to understand, from Ms A, what it is that she wants and needs.
79. It is evident from the file that the professionals involved in assessing Ms A’s needs have tried to gather this type of information. This is in keeping with guidance around s117 assessments.
80. However, from Ms A’s perspective, she finds it impossible to answer questions which ask her, in very broad terms, to say what support she might need at an unspecified point in the future.
81. Professionals appear to have made proportionate and appropriate attempts to adapt the assessment process. In terms of the requirements of the statutory guidance on autism, it was appropriate to involve the Trust’s Transforming Care team. This meant that staff with knowledge and experience of autism were involved from the outset.
82. The organisations have not pressed Ms A to complete assessments in set periods and have offered to complete assessments in a piecemeal manner. I have also seen evidence that staff have been encouraging and supportive when Ms A has been able to provide responses via email. In addition, the suggestions of specialist advocates and life planning services appear to have been genuine and well intentioned suggestions. They appear to have been made as ways of helping Ms A to engage in the assessment process and as possible ways to help Ms A better understand and quantify her own needs.
83. Overall, it is disappointing and frustrating for all parties that they do not have a s117 assessment which they are satisfied fairly and fully identifies all of Ms A’s needs. However, this is not due to fault on the part of the organisations.

Offers of support

84. The professionals have used information Ms A has provided to explore a number of avenues of support for her: from Transforming Care, the CMHT, PACT, life planning, specialist advocacy, and domiciliary care. They have also considered funding out of area treatment but determined this would be impractical and unsafe because of the nature and complexity of Ms A’s needs. This is a matter of professional judgement. There is evidence the relevant professionals considered the specific details of Ms A’s case before making their decision. As this is a question of merits, it is not for the Ombudsmen to remake or replace this decision with their own.
85. The organisations have offered a variety of practical, day-to-day support along with therapeutic support aimed at helping her to understand her needs. In addition, from the papers available to me, the attempts to commission an independent review of Ms A’s care appear to have been an honest attempt to get a fresh view on the situation.
86. Overall, I have not found evidence of fault in the organisations’ attempts to source and provide support for Ms A.

Responding to Ms A’s concerns

87. Throughout this period there is evidence of a very large volume of email correspondence from Ms A to various professionals. There is evidence that professionals sought to engage with Ms A and respond to her concerns and queries. It is apparent that the level of correspondence was a strain on resources. In this context, I have not found fault with the organisations’ decision to implement some contact restrictions. Similarly, I have not found fault that professionals were not always able to respond to Ms A’s emails in a timeframe and manner which she considered to be acceptable.

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Decision

88. I have not found fault by the organisations involved in Ms A’s care. There is evidence they have attempted to work with Ms A over a prolonged period and have adapted their approach and offered various forms of support.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman