The Ombudsman's final decision:
Summary: The Ombudsmen do not consider Miss C was eligible for section 117 aftercare after 2005. However, London Borough of Ealing significantly delayed reviewing Miss C’s social care needs after 2017. That fault most likely delayed Miss C’s move to supported accommodation.
- Miss B says London Borough of Ealing (the Council), Ealing Clinical Commissioning Group (the CCG) and West London NHS Trust (the Trust) should have paid for her sister’s (Miss C) accommodation under section 117 aftercare. Miss B would like the organisations to learn from its mistakes, pay back any accommodation fees her sister paid and void accommodation fees she stopped her sister paying.
- Miss B says that, after August 2018, the Council took 17 months to reassess Miss C’s needs and 19 months to assess her mental capacity. As a result, Miss B says the Council have significantly delayed moving Miss C from her current accommodation to a supported living placement. Miss B also says the Council did not communicate the result of the assessments to her. Miss B says this has caused distress to her sister and the family. Miss B would like the Council to communicate the result of the assessments, and to learn from its mistakes.
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).
- 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.
- 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
- I have considered information provided by Miss B, the Council, the CCG and the Trust. I have also spoken with Miss B on the telephone. Miss B and those organisations had an opportunity to comment on my draft decision.
What I found
- Miss C has a history of challenging behaviour and self-harm caused by her learning disability and schizophrenia (hallucinating and delusions).
- Between 1998 and 2000, a mental health hospital in Hertfordshire (now closed) admitted Miss C under section 3 of the Mental Health Act. The hospital discharged Miss C to specialist accommodation. Westminster Learning Disability Partnership (WLDP) supported Miss C at the accommodation under section 117 aftercare, using the Care Programme Approach (CPA). WLDP was a joint team between Westminster City Council and Westminster CCG (now Central London CCG).
- In October 2004, the WLDP noted Miss C had made excellent progress. Miss C’s mental health was stable, her self‑esteem had improved and she developed positive relationships with staff and other residents. Therefore, the WLDP discharged Miss C from section 117 aftercare as she wished to move closer to her family in Ealing.
- The WLDP found a semi‑independent residential home in Ealing called The Grove which could support Miss C’s needs. Miss C moved there in December 2004 and paid toward her accommodation costs.
- In January 2005, the Trust admitted Miss C informally due to her increasing challenging behaviours at The Grove. The WLDP provided additional support to Miss C during that informal admission. The Trust discharged Miss C back to The Grove two months later. Miss C remained at The Grove until present.
- In response to my enquiries, the Council, the Trust and the CCG could not provide me with evidence they provided or commissioned section 117 aftercare to Miss C.
- Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. section 3). Aftercare services provided in relation to the persons mental disorder under section 117 cannot be charged for. This is known as section 117 aftercare.
- 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. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under 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.
- WLDP’s CPA care plan shows it provided section 117 to Miss C between 2000 and 2004. When the WLDP discharged Miss C from section 117 in October 2004, her eligibility for it stopped. Miss C would only be eligible for section 117 aftercare again if an NHS organisation detained her after October 2004, under specific sections of the Mental Health Act.
- The Trust’s discharge letter in March 2005 shows the admission from January 2015 was informal, rather than under any section of the Mental Health Act. Therefore, when the Trust discharged Miss C back to The Grove in 2005, she was not eligible for section 117 aftercare.
- I do not consider the Trust, Council, or CCG missed an opportunity to provide section 117 aftercare after March 2005. Therefore, I cannot agree they should pay for Miss C’s accommodation costs.
The delayed needs review after 2018
- In August 2018, Miss B asked the Council to reassess Miss C’s needs and mental capacity. Miss B understood a social worker assessed Miss C’s needs the next month. However, when Miss B chased the Council in November, two months later it assigned a new social worker to complete the reassessment. Miss B then regularly chased the reassessment throughout 2019 and made a formal complaint about the delays in November.
- In December 2019, the Council apologised for the delay reassessing Miss C’s needs. It assigned a new social worker to complete the assessment in the New Year, which he did. The social worker agreed to source a supported living placement for Miss C.
- In response to my enquiries, the Council recognised it significantly delayed reassessing Miss C’s needs. It said it now has a robust plan to oversee care and support reviews each year, especially for those with complex needs. It said annual reviews ensure it appropriately meets people’s needs.
- Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan no later than every 12 months. A light touch review should be considered six to eight weeks after the plan and personal budget have been agreed. The review should be performed in a timely manner proportionate to the needs to be met. In addition to the duty on councils to keep plans under review generally, the Act provides a duty on councils to conduct a review if a request for one is made by the adult or a person acting on the adult’s behalf.
- Miss B says the Council delayed reviewing Miss C’s needs since 2018.
- I have considered the Council’s social care records, including care and support assessments, plans and reviews.
- The Council’s records show it reviewed Miss C’s needs in October 2016. It should have reviewed her needs again within 12 months of that date (in line with the Care Act 2014). The Council delayed reviewing Miss C’s needs for another 27 months. That was significant fault, which it has accepted.
- Miss B says the Council’s fault delayed Miss C moving into a supported living placement.
- The Council’s 2016 assessment of Miss C’s needs did not show she wanted to move to a supported living placement at that time. I cannot say when Miss C changed her mind about moving to a supported living placement. However, if not for the Council’s delays, I consider Miss C would have most likely moved into a supported living placement sooner. That was a missed opportunity.
- I am satisfied the Council has taken appropriate action to ensure similar fault does not happen to others. However, the Council should take further action to address the injustice I have identified to Miss C.
Communicating Miss C’s needs review and mental capacity assessment
- In January 2020, the social worker agreed to source a new supported living placement for Miss C. The social worker sent Miss B a draft copy of Miss C’s needs review for her comments. Miss B responded a few days later with comments.
- In March 2020, the social worker told Miss B her sister had capacity to decide about her long-term care and accommodation. The social worker formally completed Miss C’s mental capacity assessment in September 2020.
- During the COVID-19 lockdown, there were delays arranging Miss C’s move from The Grove to a supported living placement. The social worker regularly updated Miss B and Miss C by phone and videocall, respectively. However, the social worker stopped the search for a supported living placement until July 2020. One month later, the social worker visited a supported living placement and said it was suitable to meet Miss C’s needs. However, he needed to assess two more placements to ensure Miss C had choices.
- Miss B says the social worker did not communicate the outcome of Miss C’s needs review in January 2020.
- Section 6.98 of the Care and Support Statutory Guidance states: “Following their assessment, individuals must be given a record of their needs or carer’s assessment. A copy must also be shared with anybody else that the individual requests the local authority to share a copy with”.
- I have reviewed the Council’s social care records, and the social worker verbally communicated the outcome of the review to Miss B and Miss C (by phone and videocall). The social worker also sent a draft copy of the review to Miss C to ensure accuracy. However, the social worker did not amend the review until September 2020 (when I made enquiries to the Council). The social worker apologised to Miss B for that oversight.
- I consider the plan to move Miss C to supported living did not change after January 2020. But the nine-month delay between sending the draft and final copies was fault. The Care and Support Statutory Guidance does not state that local authorities need to provide draft and final copies of assessments/reviews. The delay communicating Miss C’s ‘final’ needs review was fault, which caused Miss B uncertainty. The Council has appropriately apologised to Miss B for the uncertainty it caused. However, it should take further action to ensure delays between ‘draft and ‘final’ assessment/reviews does not happen to others.
- Miss B says the social worker did not communicate the outcome of Miss C’s mental capacity assessment.
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
- I have considered if the Council unnecessarily delayed completing the mental capacity assessment after January 2020.
- The Council’s mental capacity assessment noted the social worker assessed Miss C’s capacity over nine months between January and September 2020. The assessment considered two questions:
- Does Miss C have the mental capacity to make decisions about her long-term care and accommodation needs?
- Does Miss C have the mental capacity to understand and sign an easy read tenancy agreement?
- Within four weeks, the Council should apologise to Miss C for the delay reviewing her needs after 2017. The Council should acknowledge its fault was a missed opportunity for Miss C to move to supported accommodation sooner.
- Within eight weeks, the Council should:
- Review the process by which it sends ‘draft’ and ‘final’ copies of care plans to service users and/or relatives. It should ensure that process does not unnecessarily delay providing copies of care plans to those that need one.
- Remind staff they should not delay sending copies of care plans to service users and/or relatives.
- I consider Miss C was not eligible for section 117 aftercare after 2005. However, the Council significantly delayed reviewing Miss C’s needs after 2017, which most likely delayed her moved to supported accommodation. The Council also delayed communicating the ‘final’ copy of Miss C’s needs review, which caused Miss B uncertainty.
Investigator's decision on behalf of the Ombudsman