Summary: Miss A complained about how Calderdale Metropolitan Borough Council and NHS West Yorkshire Integrated Care Board handled her grandmother, Mrs B’s care at home. Miss A said the lack of support from both organisations led to inadequate care for Mrs B and distress for the family. We found fault with some aspects of the organisations’ handling of the situation and their agreed to our recommendations to remedy the matter.

The complaint

1. Miss A has complained about Calderdale Metropolitan Borough Council (the Council) and NHS West Yorkshire Integrated Care Board (the ICB) in relation to the care of her grandmother, Mrs B, under s117 of the Mental Health Act from 2023 to February 2025.
2. She has complained that:

• the Council and ICB did not accurately assess Mrs B’s needs,
• the care agencies were inadequate for Mrs B’s needs,
• Mrs B’s daughter was left without support for 21 months,
• there was not sufficient respite care put in place,
• the Council pursued the family to refund an underspend and would not let them use the money for respite; and
• the Council did not allow Mrs B’s daughter to be a paid carer.

3. Miss A said the impact of this has been the care for Mrs B has been inadequate leading to her deterioration and her life being at risk, the carer strain on Mrs B’s daughter, Ms C, has been considerable, and an underspend has built up which the Council now wants back.
4. As a result of the complaint Miss A would like:

• the family to keep the underspend that has built up to employ a home care provider with experience and training at a higher rate than the Council currently allows,
• the Council and ICB to allow funds for a fully staffed respite care package at Mrs B’s home – enough funding for eight weeks a year,
• the Council and ICB to provide clear and accurate information with funding clearly explained and evidenced,
• the Council and ICB to accurately assess Mrs B’s needs,
• Mrs B to be safely looked after, with care which meets her needs
• Ms C to be paid for the three months 24 hour care she provided to Mrs B between November 2023 and February 2024; and
• Ms C to be considered as a paid carer in exceptional circumstances.

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The Ombudsmen’s role and powers

5. 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).
6. 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).
7. 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.
8. 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.
9. 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

10. I considered evidence provided by Miss A, the Council and ICB as well as relevant law, policy and guidance.
11. I gave Miss A and the organisations an opportunity to comment on this draft decision. I considered these comments before making this final decision.

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What I found

Section 117 Aftercare

12. Under section 117 (s117) of the Mental Health Act 1983 (the MHA) Councils and NHS Integrated Care Boards (ICBs) (previously Clinical Commissioning Groups [CCGs]) have a joint duty to provide or arrange free aftercare for people who have been detained under section 3.
13. Aftercare services must meet a need arising from or related to the person’s mental health disorder and reduce the risk of their mental health condition worsening and the need for another hospital admission again for the mental health disorder.
14. The Mental Health Act 1983 states that aftercare for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the care programme approach. There is a more flexible approach taken by some organisations in the NHS, but the main principles were the same at the time of these events.
15. The Mental Health Act 1983 Code of Practice states that within the care programme approach there should be a care plan which includes:

• a treatment plan which details medical, nursing, psychological and other

therapeutic support for the purpose of meeting individual needs,

• details of any actions to address physical health problems or reduce the likelihood of health inequalities,
• support provided to carers; and
• guidance on actions to be taken in the event of a crisis.

16. It is also important that a key worker be appointed who is responsible for managing the person’s various aspects of their s117 aftercare.
17. The Code also states all patients who are entitled to aftercare under section 117 are identified and that records are kept of what is provided to them under that section.
18. It goes on to say that the after-care plan reflects the full range of needs of each patient, it is important to consider who needs to be involved, in addition to patients themselves. This may involve carers and a wide range of professionals.
19. Section 117 aftercare plans should be reviewed at least annually or sooner in the person’s needs change.

Background

20. Mrs B had been in receipt of section 117 aftercare for a number of years. Following a fall and hospital admission her family decided they did not want her to go back to the care home where she had been living, and she went to live with her daughter Ms C instead in April 2023.
21. Whilst Mrs B was in hospital, a social worker assessed her needs. The support plan set out that Mrs B would receive the support of two care workers plus help from family members. This support was to be provided through a personal budget. At this point respite was mentioned as a possibility of being funded through a surplus from the main care package.
22. A further assessment was carried out in August 2023 of Mrs B’s needs. After this point, direct payments to cover respite were added to Mrs B’s care and support plan.
23. The family have complained since 2023 about the level of support set out in Mrs B’s s117 aftercare plan. Miss A said the assessments and subsequent care and support plans featured several inaccuracies. She was unhappy the plans stated that Mrs B did not have needs which needed daily nursing input and which could not be met by daily care workers and district nurses. The plans outlined a total of Direct Payments for the family to use for care workers and for respite.
24. In October 2024, a full review of Mrs B’s s117 aftercare needs was carried out, with a further assessment in March 2025. The outcome of the joint review was that the number of allocated hours needed to be reassessed however Mrs B did not require “ongoing specialist and/or nursing care from qualified nurses at present”. A further assessment in September 2025 again did not identify any nursing needs.

Council and ICB did not accurately assess Mrs B’s needs which led to carers not being able to meet those needs

25. When Mrs B was assessed in hospital before being discharged, this should have been a joint assessment carried out by the Council and ICB. As set out in paragraph 14, when a person’s needs change, there should be a review of a s117 aftercare plan. Mrs B’s needs had changed as she was not going back to the care home.
26. There is no record of the Council or ICB reviewing Mrs B’s s117 aftercare needs and involving a wide range of professionals, or appointing a key worker.
27. A social worker did carry out an assessment in August 2023, but this was not under the care programme approach and was a Care Act reassessment so not under s117.
28. I have not found fault with this actual assessment under the Care Act as it assessed Mrs B’s needs under the required criteria such as managing nutrition and personal hygiene and involved the family’s views.
29. The ICB did not carry out a review under s117 until October 2024, 18 months after Mrs B was discharged from hospital. When a full review was properly carried out in October 2024, this did not identify any nursing needs for Mrs B. Whilst the family consider Mrs B does have nursing needs, as I am satisfied that the process of assessing Mrs B was carried out properly, I cannot question or criticise the merits of the conclusions reached from those assessments.
30. Therefore, whilst there was a failure to properly assess Mrs B jointly when she was discharged from hospital and in August 2023, the impact of that failure is limited to the family being uncertain from April 2023 to October 2024 about whether Mrs B’s needs had been properly assessed.
31. Whilst the October 2024 assessment and March 2025 assessment did not identify any nursing needs, they did say the package of allocated hours needed to be reviewed. To date this has not been completed.
32. In addition, the family, in all the reviews provided, made the point that they were struggling to meet Mrs B’s needs and that Ms C especially was suffering from carer burnout.
33. In view of this the Council and ICB should have come up with a contingency plan in the event Ms C could not provide care, as this was not a sustainable situation.
34. Therefore, whilst Mrs B’s needs were properly assessed, there was a failure by the Council and ICB to decide how those needs would be met. Failure to agree this meant it is not clear whether the Council and the ICB provided enough funding so the family could arrange for or employ suitable care workers to meet Mrs B’s needs.
35. On the balance of probabilities, taking into account, Ms C had given up work and was providing what appears to be almost 24 hour care according to Mrs B’s needs recorded in the Council’s and ICB’s assessments, I consider the Council and ICB would have increased the direct payments to allow the family to pay for more care worker support.
36. This would have likely reduced the increased carer’s strain Ms C experienced. Instead, it just said it would look at increasing some of the hours and it seems the current situation is still that Ms C provides most of the care with some hours a day from care workers.
37. This fault by the Council and ICB in not reviewing the hours Ms C has led to significant distress for her in particular as she has taken on the caring responsibilities without pay. However I did note that Ms C has in the past declined carer assessments as she feels she should be a paid carer.

Safeguarding

38. The Care Act states that if a person raises a concern with the Council, it should decide whether to carry out a safeguarding enquiry which might involve a multi agency meeting to decide how to safeguard someone from the risk of abuse or neglect.
39. From the evidence seen, when the family first raised these safeguarding concerns in October 2023, there was no safeguarding enquiry. The care agency concerned stopped providing care and so, on balance, it is likely there would not be any ongoing safeguarding issues.
40. The Council said it did consider a safeguarding enquiry but did not deem it necessary. However, the Council should have communicated this and the reasons for its decision to the family. This lack of action led to uncertainty for the family that Mrs B was safe from the risk of abuse or neglect.

Respite

41. The family said it needed some respite and wanted to place Mrs B in a care home for a few weeks. This would ease Ms C’s carer burnout and allow the family to go on holiday.
42. However, as the Council did not class Mrs B as having nursing needs, it would not agree for Mrs B to go into a care home with nursing staff, which would have higher fees. In addition, the Council would not allow the family to use the surplus money that had built up due to the lack of a care agency, on a respite stay at a care home.
43. The Council said that a social worker spoke to the family in November 2023 about the possibility of respite funding. It also said that there was a delay between Mrs B’s discharge in April 2023 and agreeing an appropriate respite funding amount in October 2023. The family then used respite in May 2024.
44. The Council said that the family used three weeks of respite in 2024 but it said there was fault on its part as they were left without respite allocation for a significant period of time in 2023.
45. We cannot say that the level of care recommended by the Council was not appropriate. As it found that Mrs B did not have nursing needs, it was not unreasonable to say that the respite would only be supported at residential homes.
46. However, there was a delay in organising any respite care for the family and this placed stress on Ms C especially.

Underspend

47. Miss A said that instead of supporting the family during crisis, the direct payments department at the Council initiated an audit of their underspend and then made demands on them to refund the underspend which was tens of thousands of pounds.
48. The family said they explained that the excess was from the Council not allowing them to employ specialist care agencies that could meet Mrs B’s needs, so the money built up. However, during this time the family had to provide all the specialist care, mostly through Ms C.
49. The family said they had not breached any conditions of the direct payments agreement. Therefore, they should not have to pay any funds back until the Council and ICB held a review of Mrs B’s needs and how the money could be spent to benefit her.
50. The Council said that a certain amount could stay in the account, which included four weeks respite allocation and an additional two weeks’ emergency use along with some surplus hours which could be used flexibly within the remit of direct payments.
51. It is not unreasonable for the Council to ask that the family repays some of the underspend. The money has not been spent on Mrs B’s care and cannot now be retrospectively applied to care, so the money needs to be paid back.
52. However it should only do this once the Council and ICB have carried the appropriate assessments including carer assessments (if that is what the family wants), and compiled accurate support plans for Mrs B.
53. It is also reasonable for the Council to allow the family to keep a fund to support respite and any emergencies.

Ms C as a paid carer

54. The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 state at section 11 that direct payments for providing care cannot be made to the daughter living with their mother unless the Council is satisfied that that the care from that person is necessary.
55. The Council said that it would only allow Ms C to be paid to care for Mrs C in exceptional circumstances.
56. It said exceptional circumstances were

• need to speak their language and no likelihood to find someone locally,
• delivery by third person cause genuine distress,
• there is a need for live in care but no appropriate accommodation available; and
• the person’s care needs are intermittent and unpredictable
• recruitment of an agency to meet needs is impracticable, substantial effort of recruitment has been unsuccessful due to exceptional local workforce pressures or geographical isolation or this is the only practical way of meeting care needs during a temporary breakdown of other arrangements.

57. The form the Council filled out said that Ms C was providing good care to her mother. It said that there was a breakdown with the current agency providing care leading to it pulling out in November 2023. It said that it had offered the family different care agencies but due to low ratings, fears of mistreatment and mistrust between the professional and the family meant that they declined these options.
58. The form goes on to say there are no special circumstances or language barriers which make it necessary to pay Ms C.
59. This decision was 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 Council made its decision.
60. It appears the Council took information from Ms C to inform its decision. However, it did not give the criteria to her beforehand so that she could tailor her application accordingly. In addition, it did not properly explain the decision to the family, in particular why Ms C did not meet the criteria of a temporary breakdown of other arrangements or there being a need for live in care but no appropriate accommodation available.
61. This fault by the Council has left the family with uncertainty about why it cannot pay Ms C for the care provided, especially when there was a temporary breakdown in care.

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Action

62. Fault by the organisations has led to distress and uncertainty for Miss A and Ms C. Therefore, I make the following recommendations to remedy the situation.
63. By 4 September 2026,

• the ICB and Council write Miss A and Ms C apologising for the distress and uncertainty caused by the faults in a delay in a s117 assessment and in providing funding for respite and extra care, the failure to explain its decisions around safeguarding, the lack of a contingency plan and the failure to properly explain the criteria for paid carer requests.
• The Council and ICB pay Miss A and Ms C £250 each for the distress and uncertainty caused by these faults.
• The ICB and Council each pay Ms C £500 to acknowledge the increased carer’s strain she experienced due to the failure to review the support hours.
• The ICB and Council finalise Mrs B’s care and support plan setting out what support she should now receive and what direct payment funding will be provided.
• The Council offer Ms C a new carer’s assessment once Mrs B’s care and support plan and direct payment funding has been finalised.

64. By 5 November 2026 of my final decision the ICB and Council should write to Miss A and Ms C to outline the work it has done to prevent the failings occurring again in relation to delay in s117 assessment and in providing funding for respite and extra care, failure to explain decisions around safeguarding, contingency plan and explanation of its paid carer decision.
65. The Council should also reconsider its paid carer decision and why Ms C did not meet its criteria considering its own policy. It should invite Ms C to submit further information about why she feels should be treated as an exceptional circumstance.
66. The organisations should provide us with evidence they have complied with the above actions.

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Decision

67. I find fault causing injustice to Miss A and Ms C. I have made recommendations to the Council and ICB to provide remedies to Miss A and Ms C.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman