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NHS South East London Clinical Commissioning Group (20 006 910b)

Category : Health > Mental health services

Decision : Upheld

Decision date : 13 Apr 2021

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.

The complaint

  1. 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.

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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, 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)
  2. 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)
  3. 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).
  4. 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.
  5. 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. 
  6. 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. 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.
  2. Ms X, who brought the original complaint to us, the Council, the CCG and SLaM have had an opportunity to comment on a draft version of this decision. I took their comments into account before reaching a final decision.

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What I found

Key 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’. 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.
  2. Section 117 of the MHA imposes a duty on NHS clinical commissioning groups (CCGs) and councils to provide section 117 aftercare services.
  3. 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.
  4. When accommodation is part of a person’s section 117 aftercare, it must be free to the person. Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.

Original complaint, reference 18 010 781

  1. 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.
  2. 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.
  3. Following an investigation, we upheld Ms X’s complaint.
  4. 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.
  5. We completed our investigation in October 2019 because the Council, SLaM and CCG had agreed to carry out these recommendations by 24 January 2020.
  6. On 17 February 2020, SLaM wrote to us stating an “amended section 117 aftercare policy has been drafted following collaborative working and …[is] due to be approved at a meeting of all three services currently awaiting a date for sign off”.
  7. On 20 February 2020, about a month after the due date for the agreed policy change and staff update, the Council emailed us. It said the “relevant Policy belongs to [SLaM] and is applicable across a number of London boroughs. It has therefore been more time consuming to effect a change. A meeting has been convened … on 2 March for relevant parties. We hope to finalise changes at that time. However any changes will be subject to review by appropriate legal counsel before publication”.
  8. We asked the Council for an update on 17 March 2020, but received no response.
  9. On 26 March 2020, the Ombudsmen paused casework which needed involvement from councils, care providers and NHS organisations. This was to protect their capacity to provide frontline services during the COVID-19 crisis. We resumed this work at the end of June 2020.
  10. The Council wrote to us on 30 June 2020. It said the Council and its partners had debated at length the previously agreed change to ensure policies make it clear that patients should not be asked to claim Housing Benefit for section 117 accommodation. It said that “a change in policy is not something the Council and its partners can comply with, at this time, based on a number of factors”. In a document drafted by senior officers from the Council’s Adult Social Care department, the Council said changing the policy as previously agreed would cause the following problems (in summary).
    • 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.”
  11. The Council also told us that “the shift in cost burden would have significant wider consequences and jeopardise the legal duty upon all local authorities to deliver a balanced budget. Locally in Lewisham the additional cost burden to the LA [the Council] alone could be in excess of £9m per annum…The Council and its partners therefore feel that before any further change to policy is considered, the issue should be discussed appropriately at National Level”.
  12. The Council clarified that it based its cost estimate of £9 million on the following:
    • 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.
  13. We wrote to the Council on 17 July 2020. We confirmed we were not suggesting that section 117 funding should pay for the housing costs of everyone who receives section 117 aftercare and happens to live in supported accommodation. However, it should be free without the need to resort to benefits, for those whose accommodation was a part of their section 117 aftercare. We also addressed the concerns of the senior officers from the Council’s Adult Social Care department as follows.
    • 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:
      1. have an up-to-date record of patients who receive section 117 aftercare; and
      2. review their aftercare plans regularly, in accordance with the MHA and the Code.
    • Safeguarding. It was unclear to us why the Council and its partners considered updating their policy as previously agreed with us would make people more vulnerable. Where accommodation is part of section 117 aftercare a Council and/or CCG would normally pay the accommodation provider direct. However, most Housing Benefit claims are paid into a tenant’s bank account, with the tenant then expected to pay the landlord. It therefore appeared to us that asking people to claim Housing Benefit for accommodation which should be funded by the Council and CCG as section 117 aftercare could make them more vulnerable to the financial abuse the Council was concerned about. Conversely, carrying out the action agreed with the Ombudsmen appeared less likely to lead to the financial abuse the Council mentioned.
    • Lack of ‘move on’ motivation. We reminded the Council that section 117 aftercare is not a means tested benefit but a legal right, the aim of which is to prevent readmission for hospital treatment. The Council and CCG have a legal duty to provide section 117 aftercare, without charge, for as long as it is necessary. The Council and CCG must also ensure the needs of people who receive section 117 aftercare are reviewed regularly. Where appropriate, section 117 aftercare plans can then be amended or ended.
  14. In August 2020, we asked the Council for accurate figures to support its calculation of £9 million extra cost. The Council told us that it “and its partners remain very concerned about the implications of completing said actions and therefore intend to discuss the issue at the next Branch meeting of ADASS [the association of directors of adult social services in England]” scheduled for September. The Council told us in September 2020 that it would need to go through records manually to provide accurate figures. It provided a new estimated cost of about £6.3 million in October 2020.
  15. By October 2020, the Council, CCG and SLaM had still not taken the action agreed in October 2019 of updating their policies and procedures. We therefore launched a new investigation.

Current complaint, reference 20 006 910

Responses to our enquiries

  1. 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.
  2. The Council sent a subsequent response on behalf of itself, the CCG and SLaM. This made the following points (in summary).
    • 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.

Our findings

  1. 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.”.
  2. 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.
  3. The Council, CCG and SLaM have still not completed the second agreed action, ensuring staff involved with section 117 aftercare have the appropriate knowledge for their roles. They should have completed this action by the end of January 2020. Because of the continuing impact of the COVID-19 pandemic, it is now not realistic to expect the organisations to complete this action until March 2022.
  4. The Council and CCG have a system for keeping records for people entitled to section 117 aftercare. SLaM maintains those records for them, using its computerised medical records. While the organisations could not run automated searches of the records to support the claims they made to us about costs or to answer some of our questions, the system does comply with the record-keeping requirements of the Code. This is because there are records of:
    • the people for whom they provide or commission section 117 aftercare services; and
    • for an estimated 93% of those people, what those services are.
  5. Information provided by the Council indicates that about 7% of the 814 people to whom it owes a section 117 duty do not have up-to-date aftercare plans with details of the aftercare they are entitled to. This means around 57 people, who are reliant on section 117 aftercare to avoid readmission to hospital, do not have up-to-date plans setting out what their section aftercare is.
  6. The following were faults by the Council, CCG and SLaM:
    • 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.
  7. The damaging impact of the COVID-19 pandemic has been unprecedented and outside the control of the Council, CCG and SLaM. However, had they carried out our recommendations as agreed by the end of January 2020, the policy changes and staff updates would have been in place before the pandemic started to have a significant effect on their resources and on residents in their area who are entitled to section 117 aftercare.
  8. Ms X’s mother has not suffered an injustice because of these faults. However, the delay in updating policy, procedure and staff awareness may have affected others, if they were charged for or advised to claim Housing Benefit for accommodation that should have been free section 117 aftercare.
  9. We are also concerned that the Council and CCG estimate about 7% of people in their area who are entitled to section 117 aftercare do not have up-to-date care plans setting out what their section 117 provision should be. This means that we simply do not know whether the 57 people this affects are receiving the care and support they need, to prevent readmission to hospital. This is especially concerning in the midst of the COVID-19 pandemic, which has had a severe impact on mental health services and the users of those services.
  10. We made further recommendations to prevent others suffering an injustice because of the faults we have identified above. We are pleased that the Council, CCG and Trust have accepted our recommendations. We have set out the agreed actions and timescales for completion below.

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Agreed actions

  1. 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.
  2. 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.
  3. The Council, CCG and SLaM will provide the Ombudsmen with evidence that they have developed the training mentioned in paragraph 30 above by 13 August 2021. They will also send us evidence that they have delivered the training to staff by 29 April 2022.
  4. The following recommendation is to address the injustice to the estimated 7% of patients whose section 117 aftercare plans are not fully up to date.
    • 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.
  5. SLaM will send copies of our final decision statement and any action plans to NHS Improvement and the Care Quality Commission.
  6. The CCG will also send a copy of our final decision statement and any action plans to its NHS England local area team.

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Final decision

  1. 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.

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Investigator's decision on behalf of the Ombudsman

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