Summary: Lancashire County Council acted with fault when it contributed to the unnecessary delay discharging Mrs Y from Section 3 of the Mental Health Act. The delay most likely impacted Mrs Y’s mental well-being and caused her son, Mr X significant distress. The Council should apologise to Mrs Y and Mr X, make a symbolic payment to them, and improve its services to avoid similar fault reoccurring.

The complaint

1. Mr X complains on behalf of his mother, Mrs Y, about Lancashire County Council (the Council), Lancashire and South Cumbria NHS Foundation Trust (the Trust) and NHS Lancashire and South Cumbria Integrated Care Board (the ICB). He says the Council and Trust jointly contributed to Mrs Y’s delayed discharge between late October 2024 and June 2025. She was medically fit to leave hospital in December 2024, but poor Section 117 aftercare planning caused significant delays to her discharge. Mr X says his mother suffered a marked decline in her mental health, and events caused him significant distress too. He would like the organisations to apologise, make service improvements and make a payment to reflect the impact to them both.

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The Ombudsmen’s role and powers

2. 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).
3. If it has, we 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.
4. When investigating complaints, if there is a conflict of evidence, we may 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. 
5. 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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mr X and the organisations as well as relevant law, policy and guidance.
7. Mr X and the organisations 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

Relevant law and guidance

Section 117 aftercare

8. 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.
9. In Mrs Y’s case, the Council and ICB both held the statutory duty to arrange her section 117 aftercare. That is why they are both subject to my investigation.
10. The Department of Health and Social Care (DHSC) issued statutory guidance for the Care Act 2014: ‘Care and Support Statutory Guidance’ in 2014 (the CSSG). For people moving into accommodation as part of their Section 117 aftercare, the CSSG says: “Where the cost of the person’s preferred accommodation is more than the local authority would provide in a personal budget or local mental health after-care limit to meet the person’s needs, then the local authority must arrange for them to be placed there, provided that either the person or a third party is willing and able to meet the additional cost”.

The Mental Capacity Act 2005

11. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
12. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
13. A key principle of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the MCA provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.

The Care Programme Approach

14. The Mental Health Act 1983: Code of Practice (the Code of Practice) explains that the Care Programme Approach (CPA) should be used for patients with complex needs who are at high risk of suffering a deterioration in their mental health. Section 34.8 of the Code of Practice says “[t]his would include most people who are entitled to after-care under section 117 of the [Mental Health Act].”
15. The Code of Practice sets out the importance of effective care planning as part of the CPA. It says the care plan “should be prepared in close partnership with the patient from the outset, particularly where it is necessary to manage the process of discharge from hospital and reintegration into the community.”

Discharge from hospital

16. The DHSC issued statutory guidance: ‘Discharge from mental health inpatient settings’ (the DHSC Guidance) in 2024. This provides guidance to NHS bodies and local authorities on discharging adults from mental health inpatient settings.
17. The DHSC Guidance says: “Processes should be in place to identify people who may be at risk of a delayed discharge (for example, due to social care or housing needs) at the point of admission or before. Factors that could delay discharge (for example, the need for suitable housing or accommodation and/or a care package) should be reviewed at regularly agreed intervals throughout the inpatient stay and proactive action should be taken to address any barriers.”
18. It adds: “A person is considered Clinically Ready for Discharge (CRFD) when the heath and social care professionals conclude that the person does not require any further assessments, interventions and/or treatments, which can only be provided in an inpatient setting… Once a person is clinically ready for discharge, the inpatient team should be satisfied that the right support is in place before discharge takes place. For example, the person must have suitable accommodation to be discharged to, an appropriate time of day identified, and necessary packages of care and support should be arranged.”
19. NHS England also issued guidance: Acute inpatient mental health care for adults and older adults (the NHSE Guidance) in 2023. It reinforces the importance of timely discharges from hospital. It says: “Where someone is entitled to Section 117 aftercare, there should be early liaison with the local authority to begin planning the aftercare that is needed.”

Background

20. Following a Mental Health Act assessment, the Trust detained Mrs Y under Section 2 and admitted her to a mental health ward on 29 October 2024.
21. To support Mrs Y’s discharge, the Trust referred Mrs Y to the Council. The Council assigned Social Worker 1 (SW1) to Mrs Y on 11 November.
22. The Trust further detained Mrs Y under Section 3 on 22 November.
23. The Trust told the Council Mrs Y was medically fit for discharge on 11 December and had chased SW1’s assessment since November. The next day, the Council told Mr X it would urgently reallocate a new social worker to Mrs Y. That happened on 3 January 2025, and Social Worker 2 (SW2) began their Care Act and Mental Capacity Act assessments a few days later.
24. In late January, the Council held a meeting with the Trust and family to discuss Mrs Y’s wishes on discharge.
25. In early February, SW2 tried to call a MCA assessment and best interest meeting. That happened on 24 February. All parties agreed Mrs Y could not decide where she should move to on discharge. So, it was in her best interests to move to an Elderly Mentally Infirm (EMI) nursing home in the Wirral (outside the Lancashire area) nearer Mr X and her family.
26. Between March and April, the Council tried to source an EMI nursing home for Mrs Y. Nursing Home’s 1 and 2 decided they could support Mrs Y but cost too much or did not have an available bed (respectively).
27. On 8 May, Nursing Home 3 assessed Mrs Y and agreed to accept her. The Council and ICB agreed to jointly fund the placement. However, the Council needed to draft and agree a contract with Nursing Home 3 because it was outside Lancashire.
28. The Council agreed contracts with Nursing Home 3 on 9 June, and the Trust discharged Mrs Y there the next day. The Trust followed up with Nursing Home 3, who said she had settled well and was meeting her needs.

My findings

November 24 – January 2025

29. I have reviewed the Council and Trust’s daily care records.
30. SW1 was allocated to Mrs Y from November 2024 to support her discharge. We now know SW1 was on sick leave then and could not have assessed Mrs Y.
31. During that period, the Trust regularly chased the Council for SW1 to assess Mrs Y. I consider the Trust recognised it needed to involve the Council to facilitate Mrs Y’s discharge so soon after the admission. That was in line with the NHSE Guidance. However, the Council acted with fault when it did not respond to the Trust’s escalations around SW1. It was clear SW1 would not return to work before it agreed to reassign SW1.
32. In mid-December 2024, the Council was clear it would urgently reallocate Mrs Y to another social worker. However, the Council took too long to do that. Considering it recognised that urgency and the need to discharge Mrs Y, that unnecessary delay after December was also fault.

January 25 – February 25

33. Again, I have reviewed the Council’s daily care records, and the Trust’s medical records.
34. Once the Council assigned SW2 to assess Mrs Y’s needs, I do not consider the Council or Trust acted with fault until they jointly decided that Mrs Y was clinically ready for discharge. I will explain why.
35. The Council’s records show that it worked quickly to assess Mrs Y’s Section 117 aftercare needs on discharge. But because of Mrs Y’s advanced dementia, it was important the Council and Trust robustly considered Mrs Y’s mental capacity and what was in her best interests.
36. Because multiple parties were involved in that conversation, SW2 found it difficult to agree a suitable time for everyone to meet on the ward. It took SW2 three weeks to arrange the best interest meeting on 24 February 2025. I do not consider that was fault on the Council’s part. The SW2 made significant effort to arrange that meeting but suffered the difficulty getting all parties in the same room.

February 25 – June 25

37. Once it was clear how to support Mrs Y’s Section 117 needs, it took the Council three weeks to start its search for an EMI nursing home. That fault contributed to the unnecessary delay discharging Mrs Y. The Council has not recognised that or explained why it took so long to start that search.
38. Sourcing an out of area placement for Mrs Y was, on the balance of probabilities, going to take longer than a regular placement. It was an out of area placement the Council would not have a working relationship with. It needed to draw up a new contract with them. Therefore, I consider it would have taken the Council longer to commission the EMI nursing home in this case.
39. I do not consider the Council acted with fault by approaching Nursing Homes 1 and 2. It felt they could potentially support Mrs Y’s Section 117 aftercare needs.
40. The Council told Mr X that Nursing Home 1 would cost four times the Council’s standard rate for an EMI nursing home. Mr X said the Council should have fully funded Nursing Home 1 to support Mrs Y’s discharge. I do not consider that would have been in line with the CSSG. The Council was within its right to refuse to pay over the standard rate it would typically pay. The high cost of Nursing Home 1 did not mean Mrs Y could not move there. But I consider, on the balance of probabilities, Mr X and the family would not have paid the significant top-up required to move Mrs Y to Nursing Home 1. Therefore, I do not consider the Council acted with fault when it moved its search on to a more affordable option.
41. I do consider the Council’s miscommunication with Nursing Home 2 amounted to fault. It understood Nursing Home 2 could support Mrs Y. However, the care provider (responsible for Nursing Home 2) confirmed a bed was available for Mrs Y at another of its nursing homes, not at Nursing Home 2. The Council had been using the wrong email contact for the care provider who responded with inaccurate information about Nursing Home 2. That was fault, which caused a minor delay to Mrs Y’s discharge.
42. Once Nursing Home 3 agreed to accept Mrs Y in early May 2025, it took one month to settle the contract and discharge Mrs Y. I consider that was unnecessarily long, but I am not persuaded that delay was due to fault on the Council’s part. The Council quickly drafted and shared the contract with Nursing Home 3. It was Nursing Home 3 who delayed responding to the Council, despite the Council’s constant email chasers and escalation to senior managers. As Nursing Home 3 are not subject to my investigation, I cannot hold them responsible for any fault.
43. The Trust’s medical records showed it was also actively chasing the Council and Nursing Home 3 after May 2025. That was in line with the DHSC Guidance. The Council and Trust were meeting weekly to discuss Mrs Y’s discharge, which again showed good joint-working.
44. I also do not find any fault on the ICB’s part. Despite its statutory responsibility, the Council and Trust were responsible for deciding Mrs Y’s Section 117 aftercare needs and how to support them. The Council referred to the ICB in mid-May 2025 to seek a funding agreement for Section 117 aftercare. The ICB agreed that within one week, which was not fault.

Conclusion

45. The Council delayed starting Mrs Y’s Section 117 aftercare planning after the Trust detained her under Section 3 in November 2024. Between 18 November and 11 December, the Council missed an opportunity to reallocate Mrs Y’s social worker. Then once it agreed to reallocate Mrs Y’s social worker on 11 December, it delayed doing that until 6 January despite the urgency of the situation. That fault was not in line with the Code of Practice.
46. Once Mrs Y was clinically ready for discharge on 24 February 2025, the Council delayed starting its search for a nursing home for Mrs Y until 10 March. Then in April miscommunication with Nursing Home 2 led to confusion about the potential bed for Mrs Y. That fault was not in line with the DHSC Guidance.
47. If not for the Council’s faults, I consider the Trust would have most likely discharged Mrs Y from Section 3 into Section 117 aftercare sooner, around April. That unnecessary delay is a significant fault.

The injustice to Mrs Y and Mr X

48. I will now consider the impact from the Council’s faults on Mrs Y and Mr X respectively.
49. Mr X says Mrs Y suffered a marked decline in her mental health. I do not agree with this injustice. I will explain why.
50. The Trust’s discharge notes state: “[Mrs Y] has remained relatively stable within the context of her dementia, being irritable and verbally hostile when approached”. This does not reflect a significant deterioration in her dementia as Mr X claims. Considering the Trust’s records, I am satisfied that Mrs Y most likely displayed similar behaviours related to her dementia at the start and end of her detention under Section 3. However, I do not doubt the delayed discharge most likely affected Mrs Y’s wellbeing.
51. When the Trust called Nursing Home 3, it said Mrs Y had settled well and spending more time in the lounge area with other residents. I consider this showed Nursing Home 3, on the balance of probabilities, was a better environment for Mrs Y to be, compared with the Trust’s mental health ward.
52. Also, I consider Mr X would have suffered the avoidable distress at having to witness Mrs Y’s wellbeing suffer because of the delayed discharge.

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Action

53. Within one month of this decision, the Council should write to Mrs Y and Mr X to acknowledge the fault identified and apologise for the impact of these failings on them. When writing its apologies, the Council should follow LGSCO’s guidance on making an effective apology (at part 2.2 of its Guidance on remedies).
54. Within two months of this decision the Council should pay Mrs Y and Mr X £600 and £300 respectively, as a symbolic, tangible acknowledgement of the injustice its failings caused them.
55. Within three months of this decision, the Council should produce an action plan to address the faults this investigation has found. It should seek to identify and implement specific and realistic ways of improving its processes to help avoid similar fault reoccurring.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman