Summary: The complainant, Ms B, said she learnt in 2020 the Council, the Trust and two Clinical Commissioning Groups did not properly consider her daughter’s, Miss G’s, entitlement to free aftercare following her detainment under the Mental Health Act 1983. She also complained about the care and support provided to Miss G by the Council and the Trust. On the evidence available, we found that Miss G was not entitled to free aftercare. However, poor record keeping by the authorities led to confusion and Ms B’s uncertainty about Miss G’s entitlement to free aftercare. It also meant one of the CCG’s did not consider Miss G for healthcare funding when it should have. The Council and the Trust did not work together to complete the actions in Miss G’s discharge plan when she was released from detention and the Council did not complete care and support planning documentation properly. The authorities agreed to our recommendations and will reassess Miss G’s needs and entitlement to healthcare funding. The Council, the Trust and one of the CCG’s will apologise to Ms B and Miss G and make an acknowledgement payment. The Council will remind its officers of the importance of completing care and support planning documentation in line with best practice and statutory guidance.

The complaint

1. The complainant, who I shall refer to as Ms B, complains about the funding arrangements in place for her adult daughter, Miss G. Ms B says in January 2020 she found out that, East Sussex County Council (the Council), Brighton and Hove Clinical Commissioning Group (BH CCG), NHS East Sussex Clinical Commissioning Group (ES CCG) and Sussex Partnership NHS Foundation Trust (the Trust) did not properly consider Miss G’s entitlement to section 117 aftercare in line with the Mental Health Act 1983. Ms B says this was because when her daughter left hospital in December 2009 her care was funded by ES CCG who later decided she did not have a primary health need. She said as a result,
   Miss G had to contribute to the cost of the care provided by the Council. Ms B also complains the support provided by the Council’s social worker was poor and the Trust did not keep her daughter’s case under review.
2. Ms B says the alleged faults caused her avoidable distress and time and trouble. She also says Miss G is out of pocket because she has contributed towards care which should have been provided without charge.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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)).
5. 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.
6. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their 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

7. I have considered information provided by the complainant and the authorities complained about. I have also considered the law and guidance relevant to this complaint. All parties had an opportunity to comment on a draft of this decision and I have considered their responses.

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What I found

Legal and administrative background

8. Councils have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge it much follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act Statutory Guidance. (Care Act 2014, section 14 and 17)
9. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
10. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint resources. Each person much be treated individually. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.

People receiving care and support other than in a care home need to retain a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

11. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Care and Support Statutory Guidance sets out a list of examples but says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.
12. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.

If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.

The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.

13. Under the Mental Health Act 1983, 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. This is sometimes known as ‘being sectioned’. Usually, three professionals need to agree that the person needs to be detained in hospital. These are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has been specially approved in Mental Health Act detentions and another doctor. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person and their nearest relative about this. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
14. The purpose of detention under section 2 of the Mental Health Act 1983 is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
15. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
16. Section 136 of the Mental Health Act 1983 empowers the police to take someone who is mentally ill in public places and convey them to a place of safety. 
17. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47 and 48 of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder
18. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. People under the CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.

Background

19. Miss G is diagnosed with an autistic spectrum disorder and moderate learning disability. She also has a mood disorder diagnosis which has contributed to a history of challenging behaviours. Miss G lived at home with her family before she went to residential school as a teenager and then progressed to a residential college. She became entitled to NHS-CHC funding in 2008 when she transitioned from children services to adult services. The CCGs said this did not include any mental health funding.
20. Miss G moved to a residential service for adults with learning disabilities in late 2008. A clinical note provided stated she had problems with increasing challenging behaviour and her mental health declined. Following a Mental Health Act (MHA) assessment Miss G was later detained under section 136 of the MHA for a short period before returning to the family home.
21. In June 2009 Miss G was admitted to a privately run treatment and rehabilitation centre because of breakdown in her mental health. A clinical psychologist completed a psychology report in the same month. This report provided historical information which referred to Miss G’s placement in 2008 and Ms B’s decision to remove her from that placement. The report refers to Miss G’s admission but does not refer to the MHA.
22. A nursing report completed in October 2009 referred to the care programme approach (CPA). The October report notes Miss G’s mental health act status as ‘informal’. the report said ‘[Miss G] is an informal patient and her rights are read to her every month, however she doesn’t seem to understand them. Currently she has anxieties around her parents informing her that she is moving on… but there is no feedback as to where or when as yet…’.
23. The CCG’s also said Miss G was initially an informal patient when she first went into the centre in 2009. Then said from 24 November 2009 until 17 December 2009 she was placed under section 2 of the MHA. The CCGs said there was a discussion between medical staff and a social worker about whether Miss G should be detained under section 3 of the MHA. They said the clinical and social care staff agreed this was not the correct course of action.
24. The Council said Miss G’s Nearest Relative objected to detainment under
    section 3 of the MHA, so the application did not go ahead. The Trust also referred to a doctor’s note which stated family were concerned at the use of section 3. It does not have a record of an MHA assessment covering the date of admission in 2009.
25. An email from Ms B to the then PCT dated 13 December 2009 refers to Miss G’s placement and her unhappiness with how Miss G was being treated. The email states, ‘the section 2 runs out on 17 dec we have to stop a section 3 being put on her...’. Miss G remained in the treatment and rehabilitation centre until
    17 December 2009 when her family removed her so she could return home.
26. The Trust said it provided support via its Community Leaning Disability Teams and Crisis Resolution Home Treatment Team when Miss G moved back to the community.
27. ES CCG continued to fund Miss G’s care in the community via CHC healthcare funding. In May 2010 Miss G moved to a residential placement which provided two-to-one twenty-four-hour support.

What happened

28. ES CCG reviewed Miss G’s needs in September 2013 and decided she no longer had a primary health need. The CCG said Miss G’s needs were assessed to be ‘not over and above those that a local authority would provide…’. ES CCG sent an outcome letter to Ms B in November 2013. The letter set out how Ms B could appeal the decision.
29. As the eligibility decision was a change of recommendation ES CCG submitted the eligibility decision through a local resolution panel. The recommendation for no longer eligible was upheld. The Council had been part of the CHC process and accepted the CCG’s decision that Miss G no longer had a primary health care need.
30. The Council said ES CCG transferred responsibility for funding Miss G’s care to it in April 2015. ES CCG said it continued to fund Miss G’s care and support via CHC until June 2016 when responsibility for funding transferred to the Council. ES CCG said it recharged Miss G’s care costs to the Council from the date of the outcome of the earlier (2013) CHC eligibility decision.
31. Miss G moved to a new placement in 2016. The Council said this placement provides her with a high level of support which includes some 2:1 support. The placement is run by a private provider.
32. The Council said the chargeable care and support services for Miss G’s placement appeared in its finance system in April 2015. There was a delay completing a financial assessment until February 2017. The Council assessed that Miss G need to contribute to the costs of her care. It completed assessments in line with the Care Act and asked her to contribute to her care costs from the date of its financial assessment backdated six weeks to January 2017 (in line with its charging policy).
33. The Council said it completed a care act assessment in 2018 and held a review meeting in August 2019. It said it updated Miss G’s support plan as part of this review.
34. Ms B complained to the Council about her daughter’s social worker. The Council investigated the complaint under its complaints procedure and wrote to Ms B in October 2019. It found that it had not shared a copy of the review documents with Miss G or Ms B.
35. An approved mental health professional (AMHP) completed an assessment in October 2019 because of incidents involving Miss G at her supported accommodation. The AMHP noted deterioration in Miss G’s mental health. The assessment refers to historical information that said Miss G was detained under section 2 and 3 of the MHA in 2009.
36. Miss G was admitted to an inpatient service for people with learning disabilities under section 2 of the MHA in October 2019. Ms B provided a copy of a multi-disciplinary meeting held a few days after Miss G’s admission. Miss G’s social worker and Ms B were present at the meeting. The report noted that the section 2 expired on 11 November. Ms B expressed concern about her daughter’s current placement and said she wanted to look at other accommodation with the social worker.
37. The report also stated that BH CCG was the commissioner for the inpatient service and the Council commissioned Miss G’s community placement. The social worker referred to CHC funding and said another referral for healthcare funding would be made once Miss G was discharged. The report also said, ‘discussed s117 and the implications of this and being on section 3’. The report does not record any further details about what was discussed.
38. The discharge plan set out follow-up actions which included (but not limited to):
• Miss G’s named nurse to arrange CPA for 6 weeks post admission then 3 months and then 6 monthly by 21 November 2019.
• social worker to start placement search; and
• social worker to complete a person-centred plan prior to Miss G’s discharge.
39. In November Miss G returned to her community placement. The Trust said
    Miss G remained on standard care, that is, not subject to the CPA since she was discharged from the inpatient hospital in 2019.
40. BH CCG confirmed it received CHC checklists in October and December 2019 showing Miss G was eligible for a full DST. It said the assessment for healthcare funding (DST) did not go ahead as its records indicated Miss G was in receipt of s117 aftercare.
41. As part of its complaint investigation the Council said it also considered whether Miss G was entitled to section 117 funding. It specifically considered the report from the AMHP which contained a quote from a doctor working for the Trust. The quote said, ‘[Miss G’s] last admission was in 2009 under s2 & s3 and admitted to a hospital in Croydon…family removed her from the hospital at the end of the s3…’.
42. The Council said this was the reason why Ms B believed her daughter was entitled to section 117 funding. However, Ms B said in January 2020 a healthcare funding assessor told her Miss G should have been considered for section 117 funding.
43. When responding to the Ombudsmen BH CCG said its CHC funding team does not have any records relating to a meeting held in January 2020. ES CCG said it was not involved in any of Miss G’s care provision at this time.
44. Ms B provided an extensive list of documents with her complaint to the Ombudsmen. She also included a chronology of events. The documents include an email from a ‘Nurse Assessor Continuing Healthcare’ working for BH CCG. The email was sent on 10 January 2020 to Ms B and a social worker and referred to ‘DST’ in the subject. The email chain confirms the Nurse Assessor booked a meeting room for 20 January at 2pm.
45. A letter provided from the Trust dated January 2020 from a consultant psychiatrist was amended to include a reference to Miss G being subject to section 117 aftercare. The Trust did not say why the letter was amended but confirmed to the Ombudsmen that Miss G remains open to the community learning disability team but does not receive specific funding.
46. The Council said it made enquiries with the health authority to try to establish whether Miss G should have been entitled to section 117 funding. The evidence it provided to the Ombudsmen shows that it completed the following actions when making enquiries (not an exhaustive list):
• contacted the provider where Miss G was placed in 2009;
• contacted a doctor working for the Trust;
• contacted the NHS Funded Care Team;
• searched its records and offered to consider any paperwork Ms B had; and
• contacted an AMHP to check historical information.
47. When the Council responded to Ms B’s complaint it confirmed the amount it had calculated Miss G needed to contribute to her care costs. It also apologised for the delay in responding to her complaint and offered her a financial remedy in acknowledgement.
48. Ms B remained unhappy with the responses she had received and so, complained to the Ombudsmen.

Findings

Miss G’s entitlement to section 117 aftercare

49. The documentary evidence provided by the Council and the Trust includes evidence dating from when Miss G was detained under the MHA in 2009. Prior to this detainment Miss G was funded by the ES CCG.
50. The documentation completed in 2009 refers to an informal status while she was in the facility and later reference to section 2. There are some references to section 3, but I have not seen reliable documentary evidence to support these statements. For example, the records from 2009 do not confirm that Miss G was sectioned under section 3 of the Act.
51. When responding to our enquiries the CCGs said that Miss G was initially an informal patient when she went into the rehabilitation centre. It was not until November 2009 when she was then detained under section 2 of the MHA. The email from Ms B also supports the view Miss G was detained under section 2 of the MHA. Miss G returned home soon after the email was sent because of objection from her Nearest Relative at the time.
52. I consider it more likely than not that:
• Miss G had not been detained in hospital under section 3 of the MHA; and
• therefore, she would not have been entitled to free aftercare under section 117 of the MHA.
53. Even if Miss G had been detained in hospital under section 3 of the MHA in 2009, we cannot conclude:
• Miss G would have still been eligible for section 117 aftercare now; or
• her supported living accommodation would or should have been part of any section 117 aftercare plan because of needs arising from or related to her mental disorder, to reduce the risk of her mental condition worsening, and the need for another hospital admission again for her mental disorder.
54. This is because there are no records from 2009 to show what section 117 aftercare, if any, Miss G was assessed as needing. Also, Miss G could have been discharged from section 117 aftercare between 2009 and now.
55. Therefore, we do no not uphold the part of the complaint which relates to
    section 117 aftercare provision.

ES CCG’s healthcare funding decision and the Council’s financial assessment

56. ES CCG continued to fund Miss G’s care in the community when she returned home in 2009. In 2013 it decided she was no longer eligible for healthcare funding. It provided evidence to show what information it considered to inform its decision. It included Ms B and the Council in the process in line with the National Framework. When it made the eligibility decision Ms B had the opportunity to appeal the CCG’s decision.
57. After a panel reviewed the decision Miss G was found not eligible for healthcare funding. I have not found fault in the way ES CCG decided Miss G was no longer eligible for healthcare funding.
58. The Council did not dispute the ES CCG’s decision and proceeded to complete a financial assessment in line with the Care Act. There was a delay in the Council completing its initial financial assessment, but this did not cause Miss G injustice. It is likely Miss G benefited from the Council’s delay as it did not charge her for services or ask her to contribute for over 18 months from the date it could have charged.
59. It is unclear how much information the Council provided to Ms B to explain its financial assessment process and terminology. In her letter of complaints Ms B said she did not understand what DRE meant and she said she had asked officers for help in completing financial information, but she did not receive help. It would have provided Ms B with more support and written information. It is likely this contributed to Ms B’s frustration with the financial assessment process.
60. When it investigated Ms B’s complaint the Council reviewed Miss G’s finances and the steps it had taken to complete its assessment and determine any DRE. From the evidence I have seen Miss G has retained her minimum income guarantee in line with the relevant law and statutory guidance. Therefore, I cannot, on the evidence available, say the Council is at fault for this part of the complaint.
61. When Ms B was unhappy with the outcome of the financial assessment, she could have appealed the outcome of the assessment as set out in the Council’s letter to her. Ms B should follow the financial assessment appeals process if she remains unhappy about the charges the Council is asking her daughter to pay. If she remains unhappy with the outcome, she can ask the LGSCO to consider a complaint.

Support provided by the Council, BH CCG and the Trust to Miss G

62. The evidence available shows clinicians and officers have made written references to section 117 and section 3 which has caused confusion and led to Ms B’s assertion that Miss G was entitled to section 117 aftercare. There are faults in the way the authorities have recorded information, and this has caused avoidable frustration, uncertainty and confusion to Ms B.
63. The evidence available supports the view Ms B did attend a meeting in
    January 2020 with a CHC Nurse Assessor. A Nurse Assessor sent her an email to confirm a meeting and it is unclear why BH CCG does not have this is information in its records. This is fault. Therefore, it is more likely than not that what Ms B said the assessor told her in January 2020 did happen. This would have further compounded Ms B’s uncertainty.
64. BH CCG said a CHC checklist completed in December 2019 did not progress to a DST because it believed Miss G was subject to section 117 aftercare. The faults in the recording of information led to BH CCG not considering Miss G for healthcare funding via the DST process set out in the National Framework. I have not seen evidence to show either CCG considered her eligibility later. This has caused injustice to Miss G, as her health needs have not been properly considered. The fault is likely to have caused Ms B avoidable frustration and contributed to her complaint about section 117 aftercare. Ms B has missed out on the opportunity to participate in the CHC process and represent her daughter’s health needs.
65. It is unclear why the Council did not challenge BH CCG when it decided not to progress the CHC checklist to a full DST. The Council was aware that Miss G’s care needs and that she was not entitled to section 117 aftercare. The social worker said they would make a referral for CHC funding, and this is listed as an action in the MDT meeting held in October 2019. The Council should have ensured the action was completed. Therefore, it is likely the Council did not provide Miss G and Ms B with the support they should have reasonably expected.
66. I have reviewed the information provided by the Council such as the care and support plans it completed in 2018, 2019 and 2020. There are faults in the way the Council has completed the care and support plans. These include:
• the 2018 and January 2020 referring to the time of the assessment as (2017) and contains almost identical information in both assessments.
• the January 2020 assessment does not refer to Miss G’s section 2 detention.
• an assessment the Council dated as September 2019 refers to the section 2 which happened in October 2019.
• an assessment the Council said was completed in February 2020 refers to the reason for review as ‘update support plan for sec 117 panel’.
67. The care and support plan documents are unsigned and do not always show how the Council sought to involve Miss G or her representative Ms B in the assessment and care planning. The Council cannot evidence that it sent Ms B information leaflets about the assessment and planning process. This is fault. Referring to section 117 in the assessment is again likely to have compounded Ms B’s uncertainty and confusion.
68. The Trust said Miss G is recorded as being on standard care when she was discharged from section 2 in November 2019. It could not provide information relating to CPA reviews. However, the discharge plan completed while Miss G was an inpatient under section 2 of the MHA in October 2019 clearly set out her needs would be considered under the CPA and the timescale for doing so.
69. A person could be entitled to CPA support following their discharge even if they are not entitled to section 117 aftercare. The Trust has said it cannot provide CPA documentation from 2019 it is therefore likely the discharge plan as agreed was not followed. This is fault. This means Miss G has potentially missed out on CPA support and a mental health care plan specific to her needs.
70. The evidence available supports the view both the Council and the Trust missed an opportunity to provide Miss G with a joined-up approach and properly assess her mental health and social care needs holistically. Her discharge from hospital in 2019 after the section 2 detention was an ideal opportunity for the Council and the Trust to work together to offer a joined-up approach. Both authorities failed to ensure Miss G’s 2019 discharge plan was completed in line with what was agreed and best practice.
71. Therefore, we uphold the part of Ms B’s complaint which relates to the lack of care and support provided by the Trust and the Council. The faults are likely to have caused Miss G injustice as it is likely her mental health and social care needs have not been properly considered. Because of the fault Ms B continues to experience doubt whether the support in place is adequate to meet her daughter’s mental health and social needs. The faults have also caused Ms B avoidable frustration and led to her time and trouble pursuing this complaint.

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Recommendations

72. Within one month of our final decision:
• the Council, the Trust and BH CCG will write a collective letter of apology to
  Ms B and Miss G for the injustice caused by the faults identified in this statement. They will pay Ms B £350 each to acknowledge the avoidable frustration and uncertainty she experienced and for her and her time and trouble in pursuing this complaint.
73. Within two months of our final decision:
• the Council will start and lead on a reassessment of Miss G’s holistic mental health and social care needs and involve the Trust and Ms B. The Council will involve Miss G in the assessment process as far as possible and consider whether she needs an independent advocate.
• the Council will provide Ms B with any written information or leaflets about the care and support planning process.
• BH CCG will communicate with the Council and the Trust to ensure it properly considers Miss G’s needs and entitlement to CHC healthcare funding. BH CCG will involve Ms B in the CHC process and ensures she receives written information or any leaflets available.
• BH CCG will review its records to determine why it does not have evidence of the meeting held on 20 January 2020. It will also remind its staff of the importance of good record keeping.
• the Council, the Trust and BH CCG will update their records to clearly record
  Miss G’s current MHA and section 117 status. They will also consider whether an addendum should be added to their historical records.
• the Council will:
1. remind its officers about the importance of completing care and support planning documentation properly and in line with best practice as set out in statutory guidance.
2. remind its officers about the importance of sharing care and support planning documentation with those being assessed and their representatives. This will ensure comments from those being assessed are included in assessment documents and signatures obtained: and
3. consider whether any refresher training on the care and support planning process is needed for its officers.

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Final decision

74. I have not found fault by ES CCG. I have found fault by the Council, the Trust and BH CCG. The authorities have agreed to our recommendations, so I have completed the investigation.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman