The Ombudsman's final decision:
Summary: The Ombudsmen investigated and upheld an earlier complaint about charging for accommodation which should have been free under section 117 of the Mental Health Act 1983. We have now investigated a complaint about the Council, NHS Trust and NHS Clinical Commissioning Group failing to carry out actions agreed during the earlier investigation. We have upheld the complaint. We have also found that an estimated 57 other patients may not have up-to-date section 117 aftercare plans. The organisations accept our recommendations, so we have completed our investigation.
- We opened this complaint because the London Borough of Lewisham (the Council), South London and Maudsley NHS Foundation Trust (SLaM) and NHS South East London Clinical Commissioning Group (the CCG) failed to carry out actions agreed during our previous investigation. We have investigated the following matters:
- the Council, CCG and SLaM failed to complete actions they agreed as part of the Ombudsmen’s previous investigation into charging for services that should have been free under section 117 of the Mental Health Act 1983;
- without providing cogent reasons, the Council, CCG and SLaM reneged on an agreement with the Ombudsmen that they would ensure all relevant policies make it clear the duty to pay for accommodation which is part of section 117 aftercare lies with the relevant council and CCG, and that patients should not be asked to claim housing benefit instead;
- the Council and its partners appeared not to understand their legal duties regarding section 117 of the Mental Health Act 1983;
- the Council and its partners appeared not to have systems in place to keep accurate records of people for whom they provide or commission aftercare and what aftercare services they provide; and
- this may have caused injustice to other members of the public who are entitled to section 117 aftercare.
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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- 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.
- 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:
- written information provided by the Council on behalf of itself, the CCG and SLaM;
- written information provided by SLaM; and
- relevant law and guidance.
What I found
Key law and guidance
- 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’. Section 3 of the MHA is for providing treatment. People discharged from section 3 do not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- Section 117 of the MHA imposes a duty on NHS clinical commissioning groups (CCGs) and councils to provide section 117 aftercare services.
- The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. It says that:
- section 117 aftercare can include supported accommodation and continues as long as the person needs these services;
- councils and CCGs should keep a record of the people for whom they provide or commission section 117 aftercare services and what those services are;
- care planning for section 117 aftercare should be via the Care Programme Approach (CPA). Under the CPA, the person must have a comprehensive care plan specifying the services funded through section 117.
Original complaint, reference 18 010 781
- In 2018, Ms X complained to us about charging for her mother’s supported living accommodation, which she considered should have been free aftercare under section 117 of the Mental Health Act 1983.
- The original complaint was against the Council, SLaM and Lewisham CCG. In April 2020, South East London Clinical Commissioning Group took over responsibility for services previously provided by Lewisham CCG. For the rest of this document, I will refer to “the CCG” when referring to the actions of either CCG.
- Following an investigation, we upheld Ms X’s complaint.
- During the original investigation, the Council, CCG and SLaM had an opportunity to comment on a draft decision and draft recommendations. In their comments on the draft decision and recommendations, they did not raise concerns about the feasibility of the recommendations, or the recommended timescales. The Council, CCG and SLaM accepted our recommendations to ensure:
- all relevant policies and procedures make it clear the duty to pay for accommodation which is part of section 117 aftercare lies with the relevant council and CCG, and that patients should not be asked to claim Housing Benefit instead; and
- all staff whose responsibilities may include administering, commissioning, assessing for or providing section 117 aftercare have knowledge of the relevant law, guidance, and policy, as appropriate to their roles.
- A further disparity of esteem for mental health patients, because they would receive section 117 aftercare free, even if they have not been an inpatient or in relapse for a long time.
- Safeguarding concerns for “younger people with complex and forensic dual diagnosis in residential settings” because they may be vulnerable to drug dealers.
- Lack of ‘move on’ motivation because people who are in residential care as part of section 117 aftercare “have no incentive to move away from this pathway as they receive full welfare benefits and have no financial responsibilities for either accommodation or support. Many have accrued savings taking them over welfare benefits level.”
- about 300 people in the borough live in supported accommodation, are subject to section 117 aftercare, and use some support offered by the supported accommodation provider;
- “Higher rate Housing Benefit can be in excess of £500 per week depending on level of care”;
- a working average of £50 per week for service charges; so
- using those estimated numbers £550x300x52 weeks = £8,580,000.
- Parity of esteem. The law says the duty to provide aftercare services continues as long as a person needs them. The Code says that aftercare should not be removed solely because an arbitrary period has passed since the care started. However, it is correct to end section 117 aftercare when the CCG and Council are both satisfied the person no longer needs it. This is why it is important for the CCG and Council to:
- have an up-to-date record of patients who receive section 117 aftercare; and
- review their aftercare plans regularly, in accordance with the MHA and the Code.
Current complaint, reference 20 006 910
Responses to our enquiries
- In response to our enquiries sent in January 2021, SLaM told us it is taking or has taken the following actions:
- it has a section 117 register in place and a joint section 117 policy with all the councils it works with;
- the policy includes all key statutory and practice areas and is being reviewed to reflect more recent and emerging case law, as well as our previous decision;
- it is developing a new section 117 dashboard which will show all residents identified as eligible for section 117 aftercare;
- it has a new social care leadership team which includes section 117 aftercare as a standing item in its meetings;
- it plans to have a section 117 quality improvement programme with its partner councils’ heads of mental health social work; and
- it plans to arrange access for its staff to the Council’s core section 117 training.
- The Council, CCG and SLaM were concerned that we considered they had failed to carry out the agreed remedy from the original complaint. They did not accept they had reneged on completing the agreed action because they had produced an updated policy and procedure in January 2021.
- The organisations confirmed they understood our recommendation applied only to those people whose accommodation was part of their section 117 aftercare.
- Training for staff is delayed because of COVID-19, but it will now be developed for the end of July 2021 and rolled out January to March 2022.
- “We acknowledge that increased transparency in relation to the timescales would have supported expectation management in relation to the speed at which a policy change such as this would be achieved.”
- There is a section 117 register which holds data on patients eligible for section 117 aftercare, drawn from SLaM’s electronic patient records. SLaM has been working with the Council and other local authority partners to confirm the list of patient names on the register to improve data quality.
- An integrated panel oversees placement of people leaving hospital who need residential support as part of their section 117 aftercare. The panel is aware of the Ombudsmen’s recommendation and is following it.
- As of 1 December 2020, the Council, CCG and SLaM owe a section 117 duty to 814 people in Lewisham. An estimated 93% of them have an up-to-date plan setting out what they should get as section 117 aftercare. The organisations cannot say without a manual audit how many people have accommodation specified in their aftercare plans.
- From January 2021, the Council, CCG and SLaM have an updated policy and procedure. These state that “If accommodation is included as part of after-care, it should not be charged for, nor should person be told to claim Housing Benefit. Service and utility charges should be deemed part of the s117 accommodation.”.
- We are pleased the Council, CCG and SLaM now have these in place. However, it is disappointing that:
- this has happened a year later than agreed by all three organisations; and
- the organisations did not acknowledge until responding to our draft decision, how their own actions and the information they gave us led to this new investigation.
- the people for whom they provide or commission section 117 aftercare services; and
- for an estimated 93% of those people, what those services are.
- delays in updating the section 117 policy and procedure as agreed with the Ombudsmen in 2019;
- a resultant delay in making staff aware that they should not ask people whose accommodation is part of their section 117 aftercare to claim Housing Benefit; and
- failing to ensure all patients entitled to section 117 aftercare have up-to-date care plans stating what their section 117 aftercare is, or records documenting rational reasons why they do not have an up-to-date care plan.
- Within one month of our final decision, the Council, CCG and SLaM will notify all relevant staff of the updated policy and guidance, and provide evidence to the Ombudsmen that they have done this.
- Within two months of our final decision, the Council, CCG and SLaM will send the Ombudsmen:
- evidence of the already completed actions summarised in paragraphs 29 and 30 above; and
- a plan for completing the rest of the actions.
- If the Council, CCG and SLaM have a way of identifying those patients via an automated search of records, they will identify them and update their section 117 aftercare plans within two months of my final decision. If there are good reasons for not being able to update a particular service user’s aftercare plan within two months (for example, the person is too unwell to take part), the Council, CCG and SLaM will ensure there is a clear record of this.
- If the Council, CCG and SLaM cannot identify those patients by automatically searching records, they will follow this alternative course of action. They will ensure that, as part of every section 117 patient’s annual care review, there is a comprehensive documented section 117 aftercare plan on their record, or a clear rationale for one not being on the record (for example, the person is too unwell to take part). The Council, CCG, and SLaM will send us evidence that they have done this for all section 117 patients within 15 months of the date of our decision.
- We uphold the complaints about failing to implement the Ombudsmen’s recommendations and record keeping. The organisations have now implemented some of the outstanding recommendations and we have made further recommendations. The Council, CCG and SLaM accept our recommendations, so we have completed our investigation and closed the complaint.
Investigator's decision on behalf of the Ombudsman