Summary: There was no fault, based on evidence the Ombudsman has seen, in the Council’s decision to charge Ms C for Council funded residential care or in its conclusion that Ms C was not eligible to section 117 after care. The Council has already upheld Mr B’s complaint that there were errors in Ms C’s records. The Council has agreed to apologise and to pay £100 for the distress caused by the errors.

The complaint

1. Mr B complains on behalf of his mother, Ms C. He has provided documents which say that Ms C is eligible for section 117 aftercare and he complains that the Council has incorrectly been charging Ms C for many years.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’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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How I considered this complaint

4. I discussed the complaint with Mr B. I have considered the documents that he, the Council and the Kent and Medway NHS and Social Care Partnership Trust have sent, the relevant law, guidance and policies and the Council’s and Mr B’s comments on the draft decision.

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What I found

Law, guidance and policies

Charging for residential care

5. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.

Mental Health Act 1983 sections 2 and 3

6. The Mental Health Act 1983 sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes.
7. A person can be detained in hospital under section 2 of the Act for an assessment to be carried out and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days.
8. A person can be detained under section 3 of the Act for treatment and can be kept in hospital for up to six months. The detention under section 3 can be renewed for another six months.

Section 117

9. Section 117 of the Mental Health Act imposes a duty on health and social services to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47, or 48 of the Mental Health Act 1983. 
10. The free aftercare services referred to here are limited to those:
• Arising from or related to the mental disorder and
• Reducing the risk of a deterioration of the person’s mental condition (i.e. to prevent re-admission).

What happened

11. Ms C suffers from mental health problems and this had led to several hospital admissions. Ms C has been living in residential accommodation since 2002. Ms C lacks the mental capacity to make decision about property and finance and Mr B holds a Lasting Power of Attorney for Ms C.
12. Mr B complained to the Council in May 2019. He said that he had read Ms C’s records and had found entries which said Ms C was receiving section 117 aftercare.
13. He also found a letter dated 24 November 1992 from a psychiatrist which said the psychiatrist had signed a section 3 Mental Health Act 1983 form.
14. These documents therefore suggested that Ms C was entitled to section 117 aftercare.
15. Mr B said Ms C did not pay any contribution towards her care from 2002 to 2005. Ms C moved to a different residential home on 22 December 2005 and started paying a contribution to her care at that stage. He complained that the Council had no right to charge a contribution as the records suggested that Ms C was entitled to section 117 aftercare.
16. The Council responded and said the references to section 117 were incorrect. Three different managers had checked Ms C’s medical records and there was no evidence that she had ever been detained under the relevant section of the Mental Health Act.
17. It acknowledged that the documents were misleading as they had not been completed correctly. It upheld his complaint that there had been inaccurate recording which said Ms C was subject to section 117 without the appropriate evidence. It offered a meeting to Mr B to discuss the complaint and the resolutions.
18. It said the complaint had identified a lesson for the Council which was that officers should accurately record and understand section 117 aftercare.

My investigation

19. The Kent and Medway NHS and Social Care Partnership Trust (KMPT) delivered mental health services in Kent from 2002 until October 2018. The Council has explained that the mental health social care staff were seconded into KMPT and were line managed by KMPT. The Council continued to hold overall responsibility for the delivery of adult social care services for people with mental health problems.
20. I asked the Council and KMPT to provide me with any record relating to Ms C’s hospital admissions or section 117.
21. The Council has provided me with the chronology of Ms C’s hospital admissions since 9 August 1979. This shows that Ms C’s hospital admissions have been mostly informal (with Ms C’s consent) although there have been a couple of admissions which started as section 2 admissions (compulsory admission for assessment).
22. The chronology generally matched the documents that Mr B had supplied to the Council.
23. The records from KMPT also generally matched the Council’s chronology and showed that all the records showed either an admission under section 2 or an informal admission.
24. The only reference to section 3 in the documents that Mr B supplied was the letter dated 24 November 1992 from a psychiatrist. This letter said the psychiatrist had signed a section 3 form and left it with the social worker so that they could look into the possibility of admitting Ms C under a Compulsory Detention Order if she deteriorated. The letter said the form would not be needed if Ms C improved.
25. There are no records to show Ms C was ever admitted to hospital on the basis of this November 1992 form. There was one further hospital admission in May 1994, but this was on an informal basis.
26. I asked the Council to explain why it did not charge Ms C before 2005. The Council said it could not find any evidence that there had been any financial assessment of Ms C before 2005. The Council could not say why this was, but speculated that there may have been a change in Ms C’s financial situation.
27. Ms C’s current care and support package is jointly funded by the NHS and the Council because some of Ms C’s needs are health related and some are adult social care needs.

Analysis

28. I have only investigated the actions of the Council, not the NHS.
29. I understand why Mr B concluded from the documents that he had read that Ms C was in receipt of section 117 aftercare.
30. The Council has already upheld Mr B’s complaint that some of the records were incorrect. I agree that there was fault in the records. It appears that professionals sometimes assumed that Ms C was subject to section 117 and filled in the forms without first checking what Ms C’s funding status was.
31. I have considered what the injustice was as a result of this fault. I think the main injustice was that it led Mr B to believe that Ms C may be eligible for section 117 aftercare. Mr B spent a lot of time going through the records which were upsetting to read.
32. I note that the Council has already used Mr B’s complaint as a learning exercise to ensure that staff properly record the funding status of clients.
33. I have read the documents and I agree with the Council that there is no evidence that Ms C was ever detained under section 3 or any other relevant section of the Mental Health Act to be eligible for section 117 after care support.
34. Therefore, I do not find fault with the Council’s decision to charge Ms C a contribution to her care costs.

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Agreed action

35. I note the Council has already used the complaint as a lesson in terms of record keeping and I therefore do not make any further recommendation for a service improvement.
36. The Council has agreed to apologise to Mr B in writing for the fault and pay him £100 for the distress caused by the fault within one month of the final decision.

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Final decision

37. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman