Summary: We will not investigate Mrs X’s complaint against Oxfordshire County Council (the Council) and Oxfordshire Clinical Commissioning Group (the CCG). Mrs X complains the Council and CCG did not provide free care for her late mother-in-law. The complaint is late and there are no good reasons to investigate it now.

The complaint

1. The complainant, whom I shall call Mrs X, complained that Oxfordshire County Council (the Council) and Oxfordshire Clinical Commissioning Group (the CCG) failed to provide free care for her late mother-in-law, Mrs Z between 2013 and 2019.
2. Mrs X says this caused:
• financial loss to Mrs Z and now, her estate; and
• concern for Mrs Z’s family, who do not know if Mrs Z received aftercare she was entitled to.

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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 cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
5. 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 would find fault, or if one Ombudsman has already considered the complaint. (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

6. I have considered information Mrs X has provided in writing. This includes copies of her correspondence with the Council and information relating to an NHS continuing healthcare (CHC) appeal. I have also discussed the complaint with
   Mrs X by telephone. Mrs X had an opportunity to comment on a draft version of this decision. I took her comments into account before reaching a final decision.

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What I found

Background summary

7. In 2013, Mrs Z was detained in hospital under section 2 of the Mental Health Act 1983 (the MHA). She was discharged from hospital into residential care organised by her family and funded from Mrs Z’s savings. Mrs X says the Council gave the family no help in finding or funding care. Mrs X considers that Mrs Z should have received free care after her discharge from hospital, either:
• under section 117 of the MHA – this type of care is the joint responsibility of a person’s local council and CCG; or
• funded through NHS CHC. A person’s local CCG is responsible for assessing their eligibility for CHC and providing the funding if the person is eligible.
8. Mrs X applied for CHC funding for Mrs Z in 2015 and 2016. The CCG decided Mrs Z was not eligible. Mrs X appealed this decision and an independent review panel upheld the CCG’s original decision in 2018.
9. Mrs X says she found out about section 117 aftercare in 2018 and contacted the Council about this between then and 2020. The Council declined to investigate her complaint and signposted her to the Local Government and Social Care Ombudsman (LGSCO) in 2021. Mrs X says she was not aware of the LGSCO until the Council signposted her there. She says she was also unaware of any time limits for complaining to the Ombudsmen.
10. Mrs X complained to us in April 2021.

My analysis

11. The rules for charging for residential care say that people who have capital over an upper limit (currently £23,250) are expected to pay for the full cost of their care home fees. This does not apply to residential care that is part of a person’s section 117 aftercare or funded through NHS CHC.
12. Section 117 of the MHA imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the MHA (most commonly section 3). Aftercare services provided under section 117 cannot be charged for. This is known as section 117 aftercare. The purpose of detention under section 2 of the MHA is for assessment of a patient’s mental health and to provide any treatment they might need. Patients discharged from section 2 are not entitled to free section 117 aftercare.
13. Mrs X became concerned that Mrs Z may have been entitled to section 117 aftercare in 2018. Mrs X knew from February 2019 that the NHS would not fund Mrs Z’s care to date through CHC. She did not complain to the Ombudsmen about these matters until more than 12 months later, in 2021. This means her complaint is late. I have carefully considered whether there are good reasons for us to investigate the complaint, despite it being late. I have decided that we will not investigate. This is because the information Mrs X has provided shows that:
• Mrs X received the February 2019 decision about Mrs Z’s CHC eligibility and did not pursue this further at the time;
• Mrs Z was not detained under a relevant section of the MHA, such as section 3, so was not eligible for section 117 aftercare;
• Mrs Z had savings greater than the upper capital limit, so was not eligible for council help towards paying for care home fees; and
• therefore, an investigation is unlikely to find that the Council or CCG acted with fault in not providing section 117 aftercare or otherwise funding Mrs Z’s residential care.

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Final decision

14. We will not investigate Mrs X’s complaint as it is late and an investigation is unlikely to find fault by the Council or CCG.

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Investigator's decision on behalf of the Ombudsman