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Basildon and Brentwood Clinical Commissioning Group (19 013 095a)

Category : Health > Mental health services

Decision : Not upheld

Decision date : 28 May 2021

The Ombudsman's final decision:

Summary: Mrs G complained about funding decisions affecting her late aunt, Mrs B’s, residential care. We have not upheld the complaints about Basildon and Brentwood Clinical Commissioning Group or about Essex County Council’s actions relating to free aftercare. We have upheld some of Mrs G’s complaints about the way the Council provided information about Mrs B’s care arrangements. The faults caused Mrs G avoidable time, trouble and frustration. The Council accepted our recommendation of an apology and financial remedy for Mrs G. We have therefore completed our investigation.

The complaint

  1. The complainant, whom I shall call Mrs G, complained about Essex County Council (Council A’s) and Basildon and Brentwood Clinical Commissioning Group (CCG 1’s) actions regarding her late aunt, Mrs B’s aftercare under section 117 of the Mental Health Act 1983. Specifically, Mrs G complained that:
      1. Council A and CCG 1 failed to arrange and fund Mrs B’s residential care at Home X under section 117 following her discharge from Basildon hospital in 2011;
      2. Council A did not help Mrs G find suitable residential care and failed to give her accurate information about residential care funding, when Mrs B was ready for discharge from hospital in 2011. Mrs G says Council A told her that the family would have to find a suitable care home and sell Mrs B’s house to pay for the fees;
      3. Council A and CCG 1 failed to keep adequate and up to date records of Mrs B's section 117 aftercare entitlement and aftercare plans;
      4. Council A and CCG 1 failed to keep Mrs B’s section 117 aftercare needs under regular review; and
      5. Council A delayed responding to Mrs G’s queries and complaints and did not agree to reimburse Mrs B’s care fees.
  2. Mrs G said that as a result:
    • Mrs B’s home, the only link to her late husband, was sold to pay about £245,000 for residential care fees which should have been free as section 117 aftercare;
    • Mrs G had to pay about £4,800 as top-up fees for the first five to six months of Mrs B’s stay at Home X; and
    • Mrs G was put to avoidable time, trouble and stress when trying to get the fees reimbursed.
  3. Mrs G’s desired outcomes are for the Council A and CCG 1 to provide meaningful apologies and to reimburse her and Mrs B’s estate.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team acting on behalf of both Ombudsmen has considered these complaints. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
  2. 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).
  3. 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.
  4. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may 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. 
  5. 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

  1. The events Mrs G complains about go as far back as 2005. However, she was not advised of Mrs B’s disputed entitlement to section 117 aftercare until February 2018. Mrs G first complained to the Ombudsmen about the matter in November 2018. This means her complaint is not ‘late’.
  2. I have considered information Mrs G has provided in writing and by telephone. I have also considered written information provided by Council A and the CCG 1, as well as relevant law and guidance.
  3. I have also made enquiries to other health organisations which are not the subject of this complaint, but may have had records relevant to this investigation. I have taken the information they have provided into account.
  4. Mrs G, Council A and the CCG 1 had an opportunity to comment on a draft version of this decision. I considered any comments provided before reaching a final decision.

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What I found

Relevant law and guidance

  1. Under the Mental Health Act 1983 (MHA), 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’. Detention under section 3 of the Mental Health Act is for providing treatment. People discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
  2. Section 117 of the MHA imposes a duty on NHS clinical commissioning groups (CCGs) and council social services to meet the health/social aftercare needs arising from or related to the person’s mental disorder. Section 117 aftercare can include accommodation such as residential care. However, section 117 aftercare would not necessarily meet all health and social care needs following discharge from section 3. Section 117 aftercare services must:
    • meet a need arising from or related to the mental disorder for which the person was detained; and
    • have the purpose of reducing the risk of the person’s mental condition worsening and the person returning to hospital for treatment for the mental disorder.
  3. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and CCGs must follow it, unless there are good reasons not to. It says that councils and CCGs must keep a record of the people for whom they provide aftercare services and what those services are.
  4. People are entitled to aftercare until both the council and CCG agree they no longer need it. When they both agree to this, they should formally discharge the person (keeping a record).
  5. NHS Continuing Healthcare (CHC) is a package of ongoing care, arranged and funded by the NHS where an assessment identifies a person as having a ‘primary health need’. CHC can be used to pay for a person’s residential care fees in some circumstances.
  6. When a person is entitled to services under section 117, they are not entitled to CHC for the same services. However, they may be entitled to CHC for additional care needs as well as section 117 aftercare for the needs arising from their mental disorder.
  7. When a council arranges residential care that is not funded through section 117 or CHC, it has to do a financial assessment to decide how much a person has to pay towards the cost of the care. People who have more than a set amount of capital usually have to pay the full cost of the residential care fees. When their capital reduces below the upper capital limit, they only have to pay an assessed contribution towards their fees.

Complaints A, C and D – Section 117 aftercare

Background summary

  1. Mrs G says Mrs B had a long history of mental illness, since the 1960s. Based on information provided by another NHS CCG (CCG 2), Mrs G believes Mrs B was detained under section 3 of the MHA between December 2004 and June 2005. Mrs G says that after leaving hospital in 2005, Mrs B lived in her own home with her husband, with help from some community services until 2011, when she was admitted to psychiatric hospital.
  2. Mrs B went into hospital twice in 2011, in July and September. The July admission was because of a physical illness of the brain and nervous system. The September admission was voluntary and not a detention under the MHA. A psychiatric assessment carried out on 7 September 2011 gives a provisional diagnosis of relapse of depression, dependency on prescription sleeping pills, and mild cognitive impairment. It says Mrs B’s husband had assaulted her, threatened to kill her, and could no longer cope with caring for her. Mrs B’s husband died while Mrs B was in hospital for the second time in 2011.
  3. Mrs G says that when Mrs B was ready to leave hospital in late 2011:
    • Mrs B’s sister wanted her to be discharged to her own home or sheltered accommodation; however,
    • a hospital consultant said Mrs B could not return home on her own and had to go into residential care.
  4. Mrs B therefore moved to Home X, in another Council’s area (Council B), to be closer to relatives. Council A arranged Mrs B’s move to Home X. The residential care at Home X was treated as social care, which is chargeable subject to a financial assessment, rather than free section 117 aftercare. I have seen no evidence that section 117 aftercare was considered at the time. As Mrs B had assets over the upper limit for support with care fees, Council A told Mrs G that Mrs B was liable for the full cost of her residential care.
  5. Around 2016, Mrs G applied to the NHS clinical commissioning group in whose area Home X is located (CCG 2) for CHC funding. In February 2018, CCG 2 emailed Mrs G and Council B to refuse a CHC assessment, stating that:
    • Mrs B was detained under section 3 of the MHA between December 2004 and June 2005;
    • there was no record of Mrs B having been discharged from section 117 aftercare;
    • Mrs B “therefore has Section 117 status”; and
    • as Mrs B was eligible for section 117 aftercare, CCG 2 would not fund her residential care through CHC.
  6. Council B then agreed to fund Mrs B’s residential care as section 117 aftercare from that point.

Analysis

  1. Mrs G believes her aunt’s residential care should have been free section 117 aftercare from the time she moved into Home X in late 2011. This is because of the information she received from CCG 2 and Council B’s agreement to fund Mrs B’s residential care under section 117 aftercare.
  2. Council A and CCG 1 accepted that Mrs B had probably been detained under section 3 around 2004/05, despite the only record of this being CCG 2’s email of February 2018. However, they have refused to refund residential fees Mrs B paid up to 2018. This is because they do not accept that Mrs B’s residential care following her voluntary hospital stay in 2011 was section 117 aftercare. They say that:
    • no organisation has been able to find detention papers for Mrs B or the aftercare plan setting out the needs to be met under section 117 on her discharge from hospital;
    • Mrs B lived in her own home with her husband for at least six years before her hospital admissions of 2011, with no psychiatric admissions and minimal follow-up from health services;
    • there was no reason to believe that, even if Mrs B had been eligible for aftercare in 2005, this need would have remained until 2011;
    • Mrs B’s first hospital admission in 2011 was because of a physical health problem. She was again discharged to her own home;
    • later in 2011, Mrs B entered a psychiatric hospital as a voluntary patient. This was a separate episode of care with different needs to the admission of 2004/05; and
    • Mrs B was discharged from hospital in late 2011 into residential care after a change in her social situation combined with her physical and mental health conditions.
  3. As Council A and CCG 1 had no records made in the period 2004/05 showing that Mrs B had been detained under the MHA, I contacted other organisations who may have held such records.
  4. As part of my investigation, I contacted Trust Y, the NHS Trust which currently runs the hospital Mrs G believes detained her aunt under section 3 of the MHA in 2004/05. It says it has no records of such a detention. I have also contacted CCG 2, whose email of February 2018 stated that Mrs B had been detained under section 3 of the MHA between 2004 and 2005. CCG 2 has told me that it has no documentary evidence from 2004/05 to support the statement in that email.
  5. I have reviewed the available archived medical records of two GP Practices, including those for the years 2000 to 2011. The GP records include copies of correspondence from hospitals, the Council and specialist doctors. There is no documentary evidence of a detention under section 3 of the MHA at any point. Following a voluntary hospital admission in July 2011, a psychiatrist wrote to Mrs B’s GP and stated that:
    • she had had many previous hospital admissions;
    • her last hospital admission had been about 13 years ago; and
    • she had never been detained under the MHA.
  6. The only evidence of Mrs B having been detained under section 3 of the MHA are entries Trust Y made in her case notes from 2017 onwards, and CCG 2’s email of February 2018. There is no reliable documentary evidence to support these statements, such as records from in 2004/05, when Mrs B is said to have been detained.
  7. I consider it more likely than not that:
    • Mrs B 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.
  8. Even if Mrs B had been detained under section 3 of the MHA in 2004/05, we cannot conclude that:
    • Mrs B would still have been eligible for section 117 aftercare more than six years later; or
    • residential care would or should have been part of any section 117 aftercare plan.
  9. This is because:
    • there are no records from 2005 or since then, detailing what section 117 aftercare, if any, Mrs B was assessed as needing; and
    • Mrs B could have been discharged from any section 117 aftercare between 2005 and 2011.
  10. Therefore, we do not uphold those parts of the complaint that relate to section 117 aftercare provision and records.

Complaint B – Helping Mrs G to find residential care for Mrs B in 2011

Law and guidance relevant 2011-2012

  1. At the time Mrs B moved into Home X, the National Assistance Act 1948 (the NAA) was the main law relevant to arranging and charging for residential social care.
    • Sections 21 and 26 of the NAA set out councils’ duties and powers to provide or commission residential care, including residential care outside their area. This enabled councils to ‘make arrangements’ to place people in residential care homes outside their area. A determination by the Secretary of State relevant to the time of this complaint confirmed that a council had ‘made arrangements’ for a person’s residential care by entering into a contract with a care home.
    • Section 22 set out how councils must charge for residential care.
    • Section 24 set out which council would be responsible for residential accommodation if a person moved into residential care in a different council’s area. Government guidance at the time and case law confirmed that a person would be considered ‘ordinarily resident’ in the area where they lived immediately before a council placed them in residential care in a different area. However, if a person chose to move to a different area for residential care, and arranged and paid for the residential care themselves, then they would be 'ordinarily resident’ in the new council’s area.
  2. Under the National Assistance (Assessment of Resources) Regulations 1992, the value of a person’s main or only home was disregarded for the first 12 weeks of council arranged care. At the end of this period, the value of the person’s home was taken into account and could result in the person becoming a self-funder with a private contract for their residential care.
  3. Section 55 of the Health and Social Care Act 2001 gave councils discretionary powers to offer deferred payment agreements to people who owned a property. The person and council could enter into an agreement where the council would pay the residential care fees and recover them from the person’s estate at the end of the agreement. Councils had the discretion whether to offer such agreements to individuals. Government advice at the time was that:
    • the council where the person was ordinarily resident should advise people who were about to become permanent care home residents of the possibility of deferred payment agreements; and
    • this should happen either when the person decided to enter residential care or during the 12 week property disregard period.
  4. If a person decided not to enter into a deferred payment agreement, they would become a ‘self-funder’ at the end of the 12 week property disregard period. They would also normally become ordinarily resident in the new council’s area.
  5. The National Assistance Act 1948 (Choice of Accommodation) Directions 1992 and Local Authority Circular LAC (2004) 20 are relevant to ‘third party top-ups’. The intention of third party top-ups was to ensure people could choose to go into residential care that was more expensive than the rates councils would normally pay, if a third party was willing and able to pay the difference between the council’s and care home’s rates. In some cases, residents themselves could make top-up payments, for example during the 12 week disregard period.

Analysis

  1. Mrs G says the social workers who were involved with Mrs B at the time gave her no help or guidance in finding a suitable residential home and instead said that Mrs G had to find a care home herself and sell Mrs B’s house to fund the care. She therefore did this.
  2. Mrs G also says that Council A paid some of Mrs B’s care fees until her house was sold, while Mrs G paid about £4,800 in top-up fees to Home X because its fees were greater than what Council A agreed to pay.
  3. Council A wrote to Mrs G in June 2017 in response to her concerns about funding for Mrs B’s care. Council A said:
    • a social worker had regular contact with Mrs B and her family while Mrs B was on the mental health ward in 2011;
    • family members including Mrs B’s sister were present for discharge planning meetings;
    • Mrs B had mental capacity to agree to residential care;
    • Mrs B’s family found a suitable home in an area near them;
    • Council A completed a financial assessment which identified that Mrs B should pay the full cost of her care because she owned her home;
    • when someone meets this threshold, the Council asks that the person arranges their own care and this happened with Mrs B; and
    • because Mrs B’s care was arranged privately, it considered her to be a resident of Council B.
  4. In response to our enquiries, Council A has provided information which contradicts some of the information it gave Mrs B in 2017. Council A also told us it had lost some of Mrs B’s records while responding to Mrs G’s complaint through its local complaints procedure. The information Council A has given us shows that:
    • Council A was involved in planning Mrs B’s discharge from hospital from October 2011;
    • Council A noted in October 2011 that Mrs B and her husband had owned their property, but since Mr B had recently died, their joint assets may not be accessible for a few months. There was also a charge on the property from an equity release loan company;
    • in November 2011, Council A assessed Mrs B’s finances and disregarded the value of her property for 12 weeks, calculating Mrs B’s weekly contribution to her residential care to be £188.93;
    • the November 2011 assessment indicates that Council A did not consider Mrs B to be a ‘self-funder’ at that time. The assessment says “No AA [attendance allowance] in place at present explained once Mrs [B] becomes self funding for her Residential Care she would be entitled to AA”;
    • there are no records of Council A giving Mrs B or her family help and advice about choosing residential care in 2011/12;
    • Mrs B’s family identified Home X as their preferred choice, but Council A placed Mrs B there and entered into a contract with Home X in December 2011;
    • further financial assessments dated February and April 2012 took into account a ‘notional property value’ of £180,000. The assessments concluded that Mrs B had capital greater than the threshold for council support and should pay the full cost of her residential care;
    • in August 2012, Council A wrote to Mrs G about deferred payments. Mrs G says she did not get this letter. Council A was only willing to enter into a deferred payments agreement on the condition that Mrs B’s property was actively marketed for sale; and
    • Council A’s letter of August 2012 also says that if Mrs B or Mrs G objected to Council A placing a charge on Mrs B’s property, this “may result in termination of the [care home] placement under an Essex County Council contract”.
  5. Council A’s loss of Mrs B’s records was fault. I will deal with this and the consequent injustice in the section on complaint handling below.
  6. The available evidence, largely provided by the Council itself, indicates that Council A arranged Mrs B’s care in Home X. This is because it entered into a contract with Home X and paid most of the fees during the 12 week property disregard period. As Council A took on the responsibility to arrange Mrs B’s care, we would have expected it to give Mrs B or her family information about suitable care homes and the financial implications of residential care. I have seen no evidence of Council A doing this when Mrs B was due to leave hospital in 2011.
  7. However, Mrs B was considered to have capacity to make decisions at the time and Mrs G was not the only family member involved in supporting her then. Given the passage of time and the loss of some records, it is possible that Council A may have provided information to Mrs B or other family members but failed to keep a record.
  8. Mrs G has provided a letter from Home X dated August 2012, which says that she has paid £4,800 for top-up charges from 2 December 2011 to 2 June 2012 direct to the Home. There are no Council records showing what information, if any, it gave Mrs B and Mrs G about top-up fees at the time. It is unclear how top-ups were arranged as records from both Council A and Mrs G are sparse and simply not enough for me to reach a view on what happened, even on balance of probability.
  9. I cannot therefore conclude that Mrs G suffered a financial loss as a direct result of fault in the way Council A dealt with Mrs B’s residential care in 2011/12. It is unlikely that further investigation will find enough reliable evidence to enable us to reach a different conclusion.
  10. Council A should have made it clear to Mrs B and her representatives that:
    • she would become ‘ordinarily resident’ in Council B’s area when she became a self-funder; and
    • Council B would be responsible for her social care when her capital fell below the threshold for help with social care funding.
  11. Failing to do this was fault by Council A. The fault led to some initial confusion, time and trouble for Mrs G when she tried to resolve her aunt’s care funding about five years later. However, Council A signposted Mrs G to Council B, which took over funding her residential care. The fault did not cause a financial injustice to Mrs B.

E – Complaint handling by Council A

  1. Mrs G complains about delays in Council A’s complaints responses and its refusal to refund Mrs B’s care fees. I have considered Council A’s complaint handling since December 2017, 12 months before Mrs G’s first complaint to the Ombudsmen.
  2. Mrs G contacted Council A in April 2018 to say that she had emails confirming that Mrs B was eligible for section 117 aftercare. She also asked for Mrs B’s records. In July 2018, Mrs G’s MP contacted Council A, which responded saying it had investigated Mrs G’s complaint through its complaints process the year before. It provided a copy of a complaint response letter it sent to Mrs G in June 2017. However, Council A’s 2017 response did not address Mrs G’s concern about Mrs B’s eligibility for free section 117 aftercare because Mrs G did not raise these concerns until 2018.
  3. On 23 October 2018, Mrs G’s MP asked Council A to look into whether Mrs B’s care should have been free section 117 aftercare. Council A replied on 30 October 2018 stating that Mrs B’s care was arranged privately and not by Council A. This is incorrect and not consistent with Council A’s own records. Council A also did not address the concern about section 117 aftercare. These were faults.
  4. Council A told the MP that Mrs G could approach the Local Government and Social Care Ombudsman if she remained dissatisfied with this response. Mrs G did so in December 2018.
  5. We stopped our consideration of the complaint in June 2019, on the condition that Council A and CCG 1 did further work to respond to Mrs G’s concerns about Mrs B’s entitlement to section 117 aftercare. Council A needed to work with other organisations to access archived records. The delay between December 2018 and June 2019 was a result of the complaint being with the Ombudsmen, and not the fault of Council A. Council A took just over three months between July and October 2019 to investigate the complaint and respond to Mrs G. Some of that time was because it needed to access archived information from other organisations. This was not information that we would expect Council A to have in its own records. As Council A has a good explanation for delay between October 2018 and October 2019, this delay was not fault.
  6. Council A wrote to Mrs G on 28 October 2019. It explained that it had been in contact with CCG 1 and other NHS organisations as part of its investigation of her complaint. It explained why it considered Mrs B’s residential care should not have been funded under section 117. I have already explained in paragraphs 29-34 above why I do not consider Mrs G was entitled to section 117 aftercare. Therefore, there was no fault in the Council’s response to Mrs G’s complaint about section 117 aftercare. However, the Council’s letter again says that Mrs G’s residential care was arranged privately. This is fault, as it is incorrect and not consistent with the Council’s own records.
  7. There was no fault in Council A’s refusal to refund care fees to Mrs B in response to Mrs G’s complaints. This is because, as explained above:
    • it is more likely than not that Mrs B had not been detained under the Mental Health Act, and that her residential care was not section 117 aftercare; and
    • there is not enough evidence to enable us to conclude Mrs G suffered a financial loss because of the way Council A dealt with Mrs B’s residential care in 2011/12.
  8. Council A repeatedly made flawed assertions that Mrs B’s family arranged her care privately. This did not cause Mrs B an injustice because Council A correctly directed Mrs G to Council B, which started paying for Mrs B’s residential care.
  9. However, the flaws in Council A’s complaint handling added avoidable time, trouble and frustration to Mrs G’s experience of the complaints process and her search for answers about her aunt’s care funding.

Summary of findings

  1. I have found no fault in the actions of Basildon and Brentwood Clinical Commissioning Group (CCG 1).
  2. I have also found no fault in the actions of Essex County Council (Council A) relating to section 117 aftercare provision and records.
  3. Essex County Council (Council A) acted with fault as follows.
    • Failing to give Mrs B or her relatives clear information about ordinary residence when she moved into a care home in another Council’s area.
    • Losing some of Mrs B’s records.
    • Giving Mrs G incorrect information about Mrs B’s care arrangements in 2017, 2018 and 2019.
    • Failing to address Mrs G’s concerns about section 117 aftercare when she raised them in 2018.
  4. The faults did not cause a financial injustice to Mrs B. I have explained the detailed reasons for this view in the body of this decision statement.
  5. The faults led to avoidable confusion, time, trouble and frustration for Mrs G when she tried to resolve her aunt’s care funding. The Council has agreed to provide a remedy for Mrs G, as detailed below.

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Agreed actions

  1. To remedy the injustice to Mrs G, within a month of my final decision, Council A will:
    • send Mrs G a written apology, acknowledging the faults we have identified and their impact on her; and
    • pay Mrs G a symbolic sum of £300 in recognition of the avoidable confusion, time, trouble and frustration caused by flaws in its complaint handling.

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Final decision

  1. We have not upheld any complaints about CCG 1 or about Council A's actions relating to section 117 aftercare provision and records. We have upheld some of Mrs G’s complaints relating to the way Council A provided information about the arrangements for her aunt’s residential care. We consider the faults caused Mrs G avoidable confusion, time, trouble and frustration. Council A accepted our recommendation, so we have completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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