Summary: The Ombudsmen will not investigate a complaint about a Council’s decision to consider charging an elderly gentleman for his care. This followed a period where he mistakenly received free care because the Council wrongly thought he was entitled to free aftercare under the Mental Health Act 1983. The Council and the Health Trust have already accepted faults and acted to remedy the mistakes, which includes waiving the care fees that should have been charged for previous years. An investigation by the Ombudsmen is unlikely to achieve a different outcome.

The complaint

1. Mrs B complains on behalf of her uncle, Mr C, about Tees, Esk and Wear Valleys NHS Trust (the Trust) and North Yorkshire County Council (the Council). She says the Trust and the Council incorrectly said Mr C was detained under section 3 of the Mental Health Act (MHA) and was therefore entitled to free aftercare under section 117 of the MHA. In 2017 the Council told Mr C he was not eligible for section 117 aftercare and that he may need to contribute towards his care.
2. Mrs B does not believe Mr C should have to contribute towards his care as the Council said he was eligible for free aftercare when the Trust discharged him from hospital in 2013.

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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,as amended, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they could add to any previous investigation by the bodies, or
• they cannot achieve the outcome someone wants

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. During my consideration of this complaint, I considered information Mrs B sent to us and looked at the complaint responses and correspondence with the organisations complained about.

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What I found

Legal and administrative context

Mental Health Act 1983

6. 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.
7. 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.
8. 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.
9. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.

Background

10. Mr C was admitted to hospital under section 2 of the MHA in December 2012 because of episodes of challenging behaviour. When this was due to expire, the Trust arranged to assess Mr C. This was to consider if Mr C needed compulsory detention under section 3 of the MHA to continue his treatment.
11. The assessment concluded section 3 of the MHA was not appropriate. However, Mr C remained in hospital for treatment as a voluntary inpatient.
12. The Trust discharged Mr C from hospital in September 2013. The Trust’s records made erroneous references section 117 aftercare planning. The discharge notice to Mr C’s GP also wrongly stated he had been detained under section 3 of the MHA. It appears the Council did not check Mr C’s status when it was planning his hospital discharge. This led to Mr C being wrongly in receipt of free section 117 aftercare.
13. In October 2017, the Council identified that Mr C should not be receiving section 117 aftercare funding. It advised Mr C would need a financial assessment to establish if he needed to pay for his care.
14. Mrs B complained to the Council and the Trust as she did not consider Mr C should have to pay for his care due to being told he was eligible for section 117 aftercare funding.
15. The Trust and the Council accepted there had been errors, but confirmed Mr C was not eligible for section 117 aftercare funding. This was because he was never detained under section 3 of the MHA. However, the Council agreed any retrospective payments would be unfair and said it would not apply these.
16. The Council has clarified that it has made payments for Mr C’s placement to March 2020 and has since agreed to cover costs to June 2020 and proposed to complete a financial assessment. Mrs B asked the Council to put any financial assessment on hold until they found out the outcome of a continuing healthcare assessment completed in January.

My analysis

17. The Trust has accepted fault with the recording of information and apologised. Mr C was not detained after the section 2 expired and remained at the hospital as a voluntary inpatient. It is not the Trust’s role to decide an individual’s entitlement to section 117. However, inaccurate information in its records contributed to the wrong decision being made to give Mr C section 117 aftercare funding. In view of the Trust’s limited role in determining funding, its apology and actions to ensure the accuracy of information is checked seem reasonable. I do not consider investigation by the Ombudsmen would achieve more in this regard.
18. The Council has also accepted fault in mistakenly assuming Mr C’s eligibility for section 117 aftercare. This means Mr C was never eligible for section 117 aftercare. The Council should have completed a financial assessment in 2013 and, if appropriate, he would have needed to contribute to his care from then.
19. The Council has recognised it would be unfair to backdate any payments and has effectively waived any fees from 2013 to June 2020 when a financial assessment was to be arranged. Also, the Council’s complaint response says it has been working with other organisations to improve the way section 117 entitlement is identified.
20. It is likely Mr C has benefited financially from the faults by the Council, but now it has identified the error, it is right that the Council is seeking to put this right. I appreciate the prospect of paying towards care is likely to be disappointing to Mr C’s family as they had understood his care was free of charge for so long. However, I consider the Council’s proposed remedy is more than fair and the Ombudsmen are unlikely to achieve more by way of a better outcome by investigating.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman