The Ombudsman's final decision:
Summary: Mrs A believes her mother’s care in a care home should be fully funded under section 117 of the Mental Health Act. We found fault with the Council and the Clinical Commissioning Group due to a lack of assessment and planning of Mrs B’s s.117 aftercare. The CCG and Council have agreed to carry out work to remedy the matter.
- Mrs A complains on behalf of her mother, Mrs B, regarding her stay in a residential home (the Home). She has complained Solihull Metropolitan Borough Council (the Council) moved her mother to the Home in 2016 which could not meet her mother’s care needs. Mrs A also complained the Council failed to tell her the Home was a residential, not a nursing home.
- Mrs A complained about the care provided to her mother in the Home (funded by the Council) from 2016 to 2017.The Home is now under new management and provides Mrs B with an intensive care programme that meets her complex needs. However, Mrs A has complained the Council will not pay the Home the required weekly rate to provide her mother with adequate care. She has said this is despite the Council having a verbal agreement with the Home to provide this. In addition, she feels her mother is under s.117 of the Mental Health Act and her care should be funded through this by the Council and Solihull and Birmingham Clinical Commissioning Group (the CCG).
- Mrs A says the faults in care caused her mother’s weight to drop dramatically and her health suffered. Mrs A is also paying £35 extra every week to the Home on top of the funding provided by the Council. She is in constant worry that if her mother is admitted to hospital the Home will not take her back as it cannot afford to care for her. She feels this would mean the Council would move her mother to another home that cannot care for her and she would die. This situation has caused Mrs A anxiety which has required her GP to prescribe medication.
- Mrs A would like the Council to pay the full price of £850 a week and to backdate it to April 2019 which is when the Home first requested an increase in payments from the Council.
What I have investigated
- I have investigated the issue of Mrs B being under s.117 and her care not being funded by both the CCG and the Council. The last part of this statement explains my reasons for not investigating the other matters.
The Ombudsmen’s role and powers
- 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)
- 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).
- 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.
- 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)
How I considered this complaint
- During my investigation I have considered information from the CCG, the Council and Mrs A. I took into account comments from Mrs A, the CCG and the Council on a draft version of this statement before making this final decision.
What I found
Legal and national framework
- Under s117 of the Mental Health Act 1983 (the MHA) Councils and NHS CCGs have a joint duty to provide or arrange free aftercare for people who have been detained under section 3 (s.3) or section 37 or transferred to a hospital under section 45A, section 47 or section 48. CCGs only commission care, they do not provide it directly.
- Aftercare services must meet a need arising from or related to the person’s mental disorder and reduce the risk of their mental condition worsening and the need for another hospital admission again for mental disorder.
- Care planning for s117 aftercare should be done via the Care Programme Approach (CPA) framework (paragraph 45 of Annex A to the Care and Support Statutory Guidance and paragraph 33.14 of the MHA Code of Practice).
- Under the CPA, the person must have a comprehensive care plan and a named care coordinator who is responsible for ensuring the care plan is prepared, implemented and reviewed. The care coordinator may be a social worker, Community Psychiatric Nurse (CPN), Occupational Therapist (OT), or less commonly a psychiatrist. Care coordinators are usually based within Community Mental Health Teams (CMHTs) within NHS Trusts. CCGs contract with the Trusts to deliver the provision of mental health services, which includes providing and arranging aftercare services.
- The care coordinator should use a CPA care plan to document aftercare plans. The care plan should specify that the person is entitled to s117 aftercare and specify which services will be s117 funded. Often, the care coordinator will need to apply to a CCG panel for health funding. They will periodically report to the CCG on whether aftercare placements are still needed. Therefore, although CCGs contract Trusts to provide and coordinate the health element of aftercare services, they retain responsibility for ensuring the quality of them (as they do for all the NHS services they commission).
- CCGs and councils should keep a record of people who get s117 aftercare, and what services they get.
- Mrs B was placed in a care home after her discharge from s.3. She then moved to the Home in 2016 when her original care home shut down.
- In 2019 Mrs A was informed by the Home that her mother required increased support to manage her needs which included her mental health needs. This led to a period of correspondence between Mrs A and the Council about the care home funding provided by the Council. The Council agreed with the Home to increase the funding to £700 a week which was above the Council’s standard rate for a resident.
- Mrs A continued paying an extra £35 a week to the Home as she was worried it could not afford to provide her mother with proper support and she was happy with the care she was receiving. She came to the Ombudsmen in 2020 stating that she felt the Council should be supporting her mother’s care by funding it up to £850 a week. She also raised the issue with the Council and with the Ombudsmen that her mother was still under the s.117 and should be funded under this legislation.
- The Council has responded to the Ombudsmen’s enquiries by saying that Mrs B was eligible for s.117 aftercare. It said it funded all Mrs B’s care. However, it did not think that she had health needs that needed to be funded under the s.117. It said if it was felt that she did have needs that could be funded by the CCG it would be happy to carry out a joint assessment with the CCG.
- The Council completed a Continuing Healthcare (CHC) checklist on Mrs B to see if there was a need for a full nursing assessment to be carried out for funding but she did not meet the threshold for such an assessment.
- The Council, since learning that Mrs A was paying a voluntary top up of £35 to the Home, has increased the funding to £735 so that Mrs A is not out of pocket in the future. It has also backdated payments to the Home to reflect an increase in funding it gave in April 2019. The Council also said it is currently developing a joint s.117 policy with the CCG and will incorporate some of the recommendations from guidance produced by the Association of Directors of Adult Social Care (ADASS) into the developing this policy.
- The Council has said it followed ADASS Guidance and Principles for Aftercare Services Under s117 MHA. Under these guidelines the CPA process requires the clear identification of a named individual who has responsibility for co-ordinating the preparation, implementation and evaluation of the CPA care plan (section 34.5 of the MHA Code of Practice). There is no evidence this has happened in this case. In fact the CCG has informed the Ombudsmen, after consultation with its local mental health trust, it has no record of Mrs B’s s.117 or any assessments.
- The ADASS guidance also states, based on assessed need, a support plan for aftercare should be agreed with the person and clearly documented. The plan must include the needs which arise from the person’s mental disorder, the services that are required to meet those needs so as to reduce the risk of deterioration, and timescales within which each of the identified needs is to be addressed or reviewed.
- The plan should also indicate whether the need to be met is a health need, a social care need or a joint health and social care need and which needs should be met under s117 funding. We have not seen any evidence of such a plan being drawn up. The Council and CCG have also failed to appoint a care coordinator who would have helped to institute a plan and keep it up to date. Therefore, there was fault on behalf of both the Council and the CCG in relation to this aspect of Mrs B’s care as they have not followed the ADASS guidance or Care Programme Approach.
- The result of these faults is that Mrs B’s needs under s.117 have not been assessed and there is a possibility they have not been met. In addition, Mrs A is left not knowing whether her mother’s funding could have been increased to support any mental health needs which would have reduced her anxiety about the Home no longer being able to care for her.
- Due to the faults and the impact I have outlined above I recommend that the CCG and the Council by 23 December, write to Mrs A ackowledging and apologising for the distress the lack of clarity over s.117 has caused her.
- The Council and CCG at our request have carried out a s.117 assessment of Mrs B in October and will ensure the outcomes of that assessment are properly explained to Mrs A.
- To remedy any systemic failure, we would usually recommend the Council and CCG carry out a joint review of their s.117 arrangements but as this is happening already, we have not done so. The Council and CCG should, when the review is completed, write to the Ombudsmen and Mrs A to explain the changes that have been made as a result of the review.
- I uphold this complaint as there have been several faults in relation to the handling of Mrs B’s s.117 status that have led to anxiety for Mrs A.
Parts of the complaint that I did not investigate
- I did not investigate Mrs B’s care as this matter is out of time and the Home has since improved its care. In addition, I did not investigate the issue of the care home fees rate as there is little chance of uncovering a fault that has led to a direct injustice for Mrs A.
Investigator's decision on behalf of the Ombudsman