Birmingham City Council (25 028 317)
Category : Adult care services > Other
Decision : Closed after initial enquiries
Decision date : 10 Mar 2026
The Ombudsman's final decision:
Summary: We cannot investigate this complaint about the decision to discharge from section 2 of the Mental Health Act 1983. The action complained about is not an administrative function of the Council.
The complaint
- Mr X complains the Council failed to complete an assessment after his mother was detained under the terms of section 2 of the Mental Health Act 1983 (MHA). Mr X says his mother was discharged from detention prematurely which meant she was not detained under section 3 of the MHA which meant she is not considered eligible for section 117 aftercare in line with the MHA. He says this has resulted in his mother being charged for care which could have been provided without charge in line with the MHA.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We cannot investigate complaints about actions which are not the administrative function of a council. (Local Government Act 1974, section 26(1) as amended).
How I considered this complaint
- I considered information provided by the complainant and the Council.
- I considered the Ombudsman’s Assessment Code.
My assessment
- Mr X says the Council failed to complete an assessment after his mother was detained under the terms of section 2 of the MHA.
- Under section 2 of the MHA a person can be detained in hospital for up to
28 days. - Section 23 of the MHA allows responsible clinicians to discharge patients detained under section 2. The MHA 1983: Code of Practice says, “responsible clinicians have the power to discharge patients, they must keep under review the appropriateness of using that power”. Nearest relatives and hospital managers also have the power of discharge.
- We cannot investigate Mr X’s complaint. The action Mr X complains about is not an administrative function of the Council.
Final decision
- We cannot investigate Mr X’s complaint because the action he complains about is not an administrative function of the Council and the law prevents us from investigating in these circumstances.
Investigator's decision on behalf of the Ombudsman