Summary: The Council and Trust failed to fully assess Ms V’s social care needs between 2009 and 2016, which possibly meant she did not receive direct payments when she should have. Although I cannot say this affected the care she received, this has led to uncertainty and has had an emotional impact. The Council and Trust have agreed to pay Ms V £500 to remedy the injustice caused.

The complaint

1. Ms V complains about the service she received from Westminster City Council (the Council), North West London NHS Foundation Trust (the Trust) and Central London CCG (the CCG) between June 2009 and July 2016.
2. Specifically, she complains that the organisations failed to offer her direct payments to meet her social care needs during this period.
3. Ms V says as a result of a lack of direct payments she incurred costs in meeting her needs herself, she suffered hardship and did not receive the care and support she required.
4. As a result of bringing her complaint to us she would like the organisations to provide her with financial compensation.

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The Ombudsmen’s role and powers

5. 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,as amended, and Health Service Commissioners Act 1993, section 18ZA)
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)
7. 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), as amended).
8. 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.
9. The Ombudsmen will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and council work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault they will attribute it to the partnership as a whole and expect each body to contribute to any proposed remedies.

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How I considered this complaint

10. I spoke to Ms V and considered the information she provided in support of her complaint. I reviewed her relevant health and care records as well as comments provided by the Council and the Trust. I also considered relevant law and guidance.
11. I wrote to Ms V, the Trust, the Council and the CCG with my draft decision and considered their comments.

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What I found

Legislation and Guidance

12. Under the terms of the Mental Health Act 1983 (MHA), a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met. 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.
13. People who are discharged from section 3 are entitled to free aftercare under s117 of the Mental Health Act 1983. The aftercare must relate to their needs arising from their mental illness. This is known as section 117 aftercare. The law says the local council and clinical commissioning group are jointly responsible for arranging section 117 aftercare services.
14. The Care Programme Approach (CPA) is a means of coordinating all of someone’s care needs arising from their mental health problems. The CPA provides a framework to assess, plan and review and make sure individuals get the support they need.
15. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
16. Guidance on Direct Payments for Community Care Services 2009 says ‘Whenever a person is assessed as needing social care services, a council should check whether there is a duty or a power to make direct payments in respect of those services’.
17. The Care and Support Statutory Guidance states that local authorities have a key role in ensuring people are given timely information to support their use of direct payments. The guidance makes it clear that local authorities should provide direct payments if they are an appropriate way to discharge their duties under section 117 of the MHA.
18. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.

What happened

19. Ms V has bipolar disorder and was detained in hospital under section 3 of the Mental Health Act in 2009. She has been in receipt of s117 aftercare since this time. The CCG has a joint legal responsibility with the Council to provide aftercare for Ms V. The CCG arranged for the Trust to provide this on its behalf.
20. The Trust appointed a community psychiatric nurse to act as Ms V’s care coordinator. Under a section 75 agreement, the Council delegated its social care function for mental health patients to the Trust. This means the Trust was responsible for assessing and meeting Ms V’s health and social care needs.
21. A consultant psychiatrist reviewed Ms V on 27 November 2009, and noted that her mood was stable. The psychiatrist arranged for Ms V’s care to be transferred to a colleague for her next CPA appointment, and stated that Ms V would be seen monthly or more frequently by her care coordinator.
22. The Department for Work and Pensions (DWP) wrote to Ms V on 10 September 2009 about an application for Disability Living Allowance. It stated that she needed guidance and supervision to get around outdoors due to her anxiety and panic attacks. It also stated that she needed help with personal care, because she was at risk of self-neglect.
23. A consultant psychiatrist reviewed Ms V on 15 April 2010. In a letter to her GP they noted that Ms V’s mental health had deteriorated and suggested a change in medication and that Ms V make some lifestyle changes. The psychiatrist reviewed Ms V again in September 2010 and noted that she had recently recovered from a manic episode.
24. On 14 April 2011 the DWP wrote to Ms V to say it considered she still needed help with getting around outdoors and personal care. It said she was at risk of dangerous behaviour and self-neglect. The DWP wrote to Ms V in similar terms in 2016 also.
25. The care coordinator held regular CPA review meetings with Ms V between 2010 and 2016. The Council and Trust do not hold records of these prior to May 2010 but they sent me electronic records for the period August 2010 to April 2016. These records indicate that Ms V agreed and signed some of her paper care plans.
26. The psychiatrist carried out a clinical review of Ms V on 26 April 2016. They stated that Ms V had risk factors for unstable mood. The psychiatrist carried out another review in July 2016, with a plan to encourage Ms V to make some lifestyle changes.
27. On 2 July 2016 Ms V complained to the Trust that she had not been offered or provided with direct payments to meet her social care needs. She said as a result she incurred costs in meeting these needs independently. She told me that her poor mental health meant that between 2009 and 2016 she required additional support with the activities of daily living. Ms V said this included additional support for shopping, personal hygiene and cooking, and that this support was provided by her neighbour at a cost.
28. The Trust carried out a mental health core assessment between July and August 2016. This assessment was intended to support personal budget setting arrangements. Ms V said she required: a personal assistant for 10-40 hours per week; a cleaner for 1-2 hours per week; 5 hours of talking therapies per week; a gym membership; and support with social activities for 10 hours per week. The assessment found Ms V eligible for a personal budget.
29. In a complaint response sent in February 2017, the Trust apologised for not offering Ms V direct payments. The Trust and Council then arranged for Ms V to receive direct payments to meet her social care needs. Ms V is currently provided with seven hours of support from a befriender each week, at a cost of £100. The purpose of this to allow her to access the community and build her confidence.

My analysis

30. Ms V complains that she did not receive direct payments to meet her needs between 2009 and 2016. For Ms V to have received direct payments, the Council would have first needed to have assessed her as needing social care services.
31. Ms V is a vulnerable adult in receipt of s117 aftercare services. My view is that she had the appearance of a need for care and support between 2009 and 2016. Because of this the Council should have carried out a formal assessment of her needs under the Care Act during this period.
32. I have reviewed Ms V’s CPA documentation. She met regularly with her care coordinator and a consultant psychiatrist, and it appears they reviewed her condition and provided interventions for her mental health needs.
33. I have found no fault in the way the Trust, Council and CCG managed Ms V’s s117 aftercare provision. However, there is no evidence that the Trust or Council carried out an assessment of Ms V’s needs under the Care Act, which is fault. The CCG is not responsible for assessing or meeting Ms V’s needs under the Care Act.
34. Had the Trust or Council carried out an assessment at an earlier point, it is difficult to say if this would have found needs that could have been met by direct payments.
35. The Trust and Council said that Ms V’s CPA reviews would have identified any unmet needs. They said there was nothing in these to indicate that Ms V’s social care needs were not adequately met.
36. However, Ms V says she was never asked to sign copies of her CPA care plans, and that her requests for additional support went undocumented. The Trust sent me electronic records which indicate Ms V agreed and signed a paper care plan during some of her CPA meetings. The Council and Trust have not produced paper care plans which bear Ms V’s signature. Ms V has sent us copies of her care plans which bear her care coordinator’s signature, but not her own.
37. The available evidence does not support that Ms V always signed or agreed with the contents of her care plan. Therefore it is possible that she requested additional support prior to 2016 and that this was not recorded in the CPA records.
38. Furthermore, letters from the DWP show that that Ms V was at risk of self-neglect and required assistance with the activities of daily living between 2011 and 2016. Ms V’s regular CPA reviews did not identify this.
39. In addition, Ms V provided some information to support that a neighbour assisted her with the activities of daily living. After Ms V complained, the Council provided her with a personal budget for a befriending service to assist her in accessing the community. It appears the support she received from her neighbour is similar to the support she is now receiving through direct payments.
40. Taking the above into account, I do not agree that the CPA reviews would have identified any and all of Ms V’s unmet social care needs between 2009 and 2016. The evidence suggests that Ms V did have unmet social care needs in this period, and it is possible that had the Trust or Council carried out an assessment of her needs at an earlier point, they would have met these through direct payments.
41. However, given the amount of time that has passed and the shortage of assessments, it is difficult to say with certainty what Ms V’s needs were between 2009 and 2016. The CPA documentation supports that Ms V’s mental health needs fluctuated over time, for example a care plan review letter from 2016 shows that her mental health was particularly poor at that time. Therefore, I cannot say that the support provided by direct payments in 2016 would always have been offered had Ms V’s needs been assessed more fully in the preceding period.
42. Ms V wants a back-payment for the costs incurred in meeting her needs independently. However, Ms V has not been able to show that she paid for the care that she received from her neighbour. Ms V sent me a letter her neighbour wrote, but this does not mention the exchange of money and It appears this was a friendly, informal arrangement. The available evidence does not support that Ms V lost out financially due to a lack of direct payments, so I will not ask that she receive payment for this.
43. However, the Council and Trust did fail to provide an assessment of Ms V’s needs under the Care Act and its possible this meant she did not achieve the support she required through direct payments. This has left her with the feeling of being unsupported and a degree of confusion and uncertainty. This is an injustice in itself which the Trust and Council have not put right.

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Agreed Recommendations

44. Within one month, the Trust and Council pay Ms V £500. This is in recognition of the emotional impact and long period of uncertainty caused by not assessing Ms V’s social care needs and possibly not providing her with direct payments.
45. As individual responsibility is unclear, it is up to these organisations to decide how to comply with this recommendation.

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Final decision

46. I have found that the Trust and Council are at fault for not fully assessing Ms V’s social care needs between 2009 and 2016. This possibly meant she did not receive direct payments when she should have. This caused uncertainty and left Ms V feeling unsupported. I have found no fault in the actions of the CCG.

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Investigator's decision on behalf of the Ombudsman