Summary: We investigated a complaint about if the Council, Trust and Integrated Care Board provided suitable care to Ms B’s mother. We found no fault with their actions in the period under investigation. Ms B also complained despite taking a carer’s assessment, she did not receive any support. We found evidence the Trust did not progress the application quickly or follow up on the assessment when Ms B did not respond. This left Ms B without support, and she struggled to cope supporting Ms C. We recommended an apology and service improvements to address the injustice.

The complaint

1. Ms B complains about the health and social care provided to her mother, Ms C, between April 2020 and June 2021 by Devon County Council and Devon Partnership NHS Trust. She also complains Ms C is not receiving the psychotherapy she needs. Ms B explains her mother is worse since a Care Act assessment in April 2020 and feels she is worsening daily because of lack of support.
2. Ms B also complains that she is not receiving suitable support as a carer despite a carer's assessment in late 2021.
3. Ms B explains the lack of suitable support has had a damaging impact on her and her mother. Also, she has had to fund specialist support for her mother herself.
4. Ms B wants the organisations to agree to a custom approach to her mother’s continuing needs. She also wants the organisations to refund the money she paid for a private social worker and a financial remedy for the distress to her and her mother.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. 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)
7. 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 acts to stop the same mistakes happening again.
8. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. 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

10. I considered the complaint Ms B made to the Ombudsmen and information she provided on the telephone and by email. I also considered the information the Council and Trust provided in response to my enquiries.
11. I also sent an enquiry to NHS Devon Integrated Care Board who confirmed it is aware of Ms C and her eligibility for s117 aftercare funding.
12. I shared a confidential draft with Ms B, Ms C, the Council, the Trust and the ICB to explain my provisional findings and invited their comments. I considered the comments I received before making a final decision.

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What I found

Background

13. Ms C is on the autism spectrum. She finds it difficult to engage with professionals from the Trust because of bad experiences with mental health services in the past. Ms C also has severe anxiety and can self-neglect. She cannot engage with her community because of difficult behaviour when triggered and the police have arrested her many times.
14. Ms C has a long and complex history of involvement with the organisations. Our investigation has only considered from April 2020 to June 2021. Ms C was under a Community Treatment Order (CTO) from when she left hospital in 2015. This is an order made by a doctor to ensure Ms C received supervised treatment in the community, rather than her being in hospital.

S117 aftercare

15. The Mental Health Act 1983 (MHA) sets out when a person can by law be admitted, detained, and treated in hospital against their wishes. Under the 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’.
16. A person can be detained in hospital under section 2 of the Act for assessment and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet. Section 3 is to provide treatment and detention can last for a maximum of six months. As with section 2, a social care assessment should be done before discharge.
17. S117 of the MHA imposes a duty on health and social services to meet the health and or social care needs arising from, or related to, the persons mental disorder. This is known as s117 aftercare. S117 aftercare services must:
• meet a need arising from or related to the mental disorder for which the person was detailed; and
• have the purpose of reducing the risk of the person’s mental condition worsening and the person returning to hospital for the treatment for the mental disorder.
18. Section 33.7 of the Mental Health Act Code of Practice 2015 states Councils and CCGs (since replaced by ICBs) should “maintain a records of people for whom they provide or commission aftercare and what aftercare services are provided.”
19. The ICB shares a statutory duty with the Council to provide, or arrange, s117 aftercare services for eligible service users in the area.

Support provided to Ms C

20. Ms B complains about the care the Trust and Council provided to Ms C. Ms B feels the organisations do not understand Ms C’s needs and are not providing her with suitable care and support. Ms B knows Ms C receives s117 aftercare but complains the organisations are not fulfilling their legal duty to provide care to Ms C.
21. Section 75 of the National Health Service Act 2006 allows NHS organisations and Councils to arrange delegation of their roles to one another. This is known as a Section 75 Agreement and under them, NHS organisations can provide social work services which are normally the responsibility of councils. Devon County Council and Devon Partnership Trust have a Section 75 agreement in place to provide adult mental health social care alongside adult secondary mental health services to provide an integrated service.
22. In mid-April 2020, the police and an ambulance went to Ms C’s address after she called them because she had a headache. Both parties spoke to the Council about their concerns for Ms C. Professionals discussed Ms C, and the Trust spoke with Ms C about her needs. All parties agreed she needed more support with shopping and cleaning. The notes show the Trust tried to find a local company who could provide consistent support to Ms C.
23. Ms B spoke to Ms C’s assigned social worker in June 2020. She believed Ms C may have had a previous misdiagnosis, so her medication was not helping. She asked the Trust to stop the medication. Professionals agreed to try a gradual decrease in the prescription to see if this helped.
24. Ms B told the social worker her mother was declining. The Council arranged for direct payments for four hours a week support started in mid-June 2020, managed by Ms B. Direct payments allow a person to arrange and pay for their own care. Most professionals highlighted the importance of needing to speak to Ms C directly so they could understand her needs from her own perspective, rather than Ms B telling them.
25. In October 2020, Ms C told the Trust she did not want to have any contact with it directly, and any communication should go through Ms B.
26. Ms C has been on a Community Treatment Order (CTO) since she left hospital in 2015. This is an order made by a doctor to ensure Ms C received supervised treatment in the community, rather than her being in hospital.
27. Ms B asked the Trust to discharge Ms C from her CTO, as her ‘nearest relative’. The MHA describes the nearest relative, it is usually a family member with responsibilities and powers if the person is detained in hospital under the MHA. Section 23 of the MHA allows a nearest relative to ask for the discharge of the person under a community treatment order after a section 3 detention. When a Trust receives a request, it must respond within 72 hours. The Trust received the request from Ms B on 27 October 2020 and revoked Ms C’s CTO the next day.
28. In November Ms C refused to continue her injected medication and wanted no further involvement with the Trust. Ms B agreed to manage communication between the Trust and Ms C. The Trust could not speak to Ms C directly and could not find out her needs. I have seen evidence the Trust explained to Ms B the Council would not provide support to Ms C which the Trust could provide. It stressed the need for all parties to work together to support Ms C.
29. Ms B told both the Council and the Trust it was triggering for Ms C when different professionals who she was not familiar with asked her many questions. Ms B knew professionals needed to assess Ms C but asked the organisations to only approach Ms C through her. The organisations agreed to this as a reasonable adjustment under the Equality Act 2010 and Ms B managed contact.
30. Ms B continually told professionals how distressing Ms C found any interaction with Trust staff and refused suggestions of video or telephone contact. Ms B told them contact could only be in writing. The Trust explained despite agreeing to the reasonable adjustment, this was not enough for them to assess Ms C and find out her needs.
31. In January 2021 Ms B contacted Ms C’s social worker and the Council explained it needed to review Ms C but to do so, it needed to speak to her. It explained it would work with Ms B to cause the least amount of distress possible for her. Later the same month, a phone call took place between the social worker, Ms B and Ms C, but the social worker could not find out Ms C’s needs and could not complete the assessment.
32. In line with Ms C’s wishes, the Trust discharged her from its mental health services in February 2021. Ms B told us her mental health care reverted to her GP. Her social worker continued to speak to Ms B to finish assessing Ms C’s needs.
33. An Occupational Therapy assessment in April 2021 says “Ms [C] has eligible needs under the Care Act and as such requires support with many daily routines. Her conditions impact upon her physical and emotional ability and as a consequence there is or is likely to be a significant impact on wellbeing without support. By implementing with major adaptations, care and support it is anticipated that there will be an increased positive impact on physical and emotional wellbeing.”
34. The Council completed a S117 review in April 2021 and increased Ms C’s support to 14 hours a week, paid through direct payment, starting in May 2021.
35. The Care and Support Statutory Guidance 2014 (CSSG) says “local authorities must undertake an assessment for any adult who appears to have any level of needs for care and support.” It adds “the purpose of a needs assessment is to identify the needs and outcomes that an adult wishes to achieve in their day-to-day life”.
36. I recognise Ms B has been acting as carer for Ms C and told the Council what her mother’s needs are. However, the CSSG says “during the assessment local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer.” The guidance adds "the local authority must involve the person being assessed in the process. In the case of an adult with care and support needs, the local authority must also involve any carer the person has.”
37. Ms B told the organisations it was triggering for her mother when they asked her many questions. The guidance stresses the importance of Ms C’s voice being in the assessment. The organisations agreed Ms B could ease contact but continued to ask for Ms C’s engagement with professionals in a way she could manage.
38. For cases like Ms C’s, the CSSG says “where the local authority identifies that an adult is unable to effectively engage in the assessment process independently, it should seek to involve somebody who can assist the adult in engaging with the process and helping them to articulate their preferred outcomes and needs.”
39. I have seen no evidence Ms C does not have capacity to engage with the assessment but understand she does find it difficult. She has Ms B to help her, but she still needed to be involved. The organisations acted in line with guidance by continuing to ask to speak to her through Ms B.
40. Ms B explains Ms C is continuing to decline, both physically and mentally. She explains because Ms C is not receiving support, her physical health is worse, and she no longer has a social life. Ms B explained Ms C cannot leave the house without getting into trouble with those around her. She cannot use the local bus network because of past behaviour and is known to the police, who she calls when she feels lonely.
41. Everyone involved in Ms C’s care faced difficulties communicating with her, even Ms B. This led to delays in carrying out Care Assessments, which meant changes could not be made to her care package. I have seen evidence throughout the period under investigation, the Trust and the Council worked with Ms B and provided clear instruction to her on what needed to happen so they could support Ms C.
42. I recognise Ms C struggled to cope, but I have seen no evidence of lack of willing by the organisations to support her.

Lack of support to Ms B as carer

43. Ms B complains despite having a carer's assessment in late 2021, she has not received any help or support.
44. The Council explained it passed the responsibility for progressing the support application for Ms B to the Trust in October 2021. It said it passed a carer’s assessment and support plan completed by a local charity to the Trust for review.
45. In December, the Trust wrote to Ms C to explain it needed to assess her in person, the letter asked Ms B to contact them so it could continue with her application. The Trust told me it did not hear from Ms B but because it was focusing on supporting Ms C, it did not chase the issue more forcefully.
46. The Council told me Ms B had a carer’s assessment appointment in June 2022 and the application is progressing.
47. The National Institute for Health and Clinical Excellence (NICE) provides guidance on supporting adult carers, NG150. At 1.3.19 it states organisations should “ensure the carer understands the actions that have been agreed and what the next steps will be.”
48. The CSSG says “carers’ assessments must seek to establish not only the carer’s needs for support, but the sustainability of the caring role itself, which includes both practical and emotional support the carer provides to the adult.”
49. Ms B struggled to cope with supporting her mother informally and asked for a carer’s assessment so she could receive more support. She did not know what happened after the assessment with the charity. This caused her confusion as she did not know who to speak to about the assessment, or where support should be coming from. Ms B also explained the lack of support she has received has had a damaging impact on her and her family’s well-being, and on her ability to best support Ms C.
50. Since the start of the Ombudsmen investigation, the Trust has now progressed Ms B’s carer assessment and I have received evidence from Ms B and the Trust that communication about this is continuing.
51. In summary, the Trust said it did not follow-up Ms B’s carer assessment because its focus was on supporting Ms C. It has no follow up procedure in place after an assessment and it did not realise Ms B had not replied to its letter and was not receiving support. The Trust failed to support Ms B. This is not in line with guidance and is an indication of fault. This led to a negative impact on Ms B who struggled to support her mother. This is an injustice to her which it could have avoided.

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Agreed actions

52. The Ombudsmen made and the Trust agreed that within one month of the date of the final decision, it will write to Ms B and apologise for the avoidable distress caused when it did not process her carer’s assessment quickly. It should send a copy of this letter to the Ombudsmen.
53. Within two months of the date of the final decision, the Trust should also review its procedures to ensure it follows up on any carer’s assessments it processes. It should send evidence of this to the Ombudsmen.

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Final decision

54. I partially uphold this complaint. I found fault by the Trust which led to an avoidable injustice to Ms B. The agreed actions will provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman