Summary: We will not investigate this complaint about a refund of care home fees and the person’s eligibility for free care under s117 of the Mental Health Act 1983, as the issue has now been resolved.

The complaint

1. Mr P complains Staffordshire County Council (the Council) and NHS East Staffordshire Clinical Commissioning Group (the CCG) failed to backdate care home fees for his mother Mrs N to the date she went into residential care in January 2020. He said his mother was eligible for free s117 aftercare under the Mental Health Act 1983, and that her care home fees should have been paid in full by the Council and CCG from January 2020 onwards.
2. Mr P also says the Council did not respond to his complaint for around ten months, despite him chasing this regularly.
3. Mr P says his mother paid around £50,000 in care home fees from her savings, when this should have been paid for by the Council and CCG. He wants the organisations to refund the fees his mother wrongly had to pay.

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The Ombudsmen’s role and powers

4. 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 on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. 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)
6. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take to resolve 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

7. I have considered information Mr P provided in writing and by telephone. I have also considered written information from the Council and CCG (now NHS Staffordshire and Stoke-on-Trent Integrated Care Board (the ICB)) as well as relevant law and guidance.

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What I found

Legislation and guidance

8. Section 117 of the Mental Health Act 1983 imposes a duty on health and social services to meet the health/social care needs arising from or related to a person’s mental disorder, for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under s117 cannot be charged for. This is known as section 117 aftercare.
9. Section 117 aftercare services must:
• meet a need arising from or related to the mental disorder for which the person was detained; and
• have the purpose of reducing the risk of the person’s mental condition worsening and the person returning to hospital for treatment for the mental disorder.
10. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and CCGs must follow it, unless there are good reasons not to. The Code says that section 117 aftercare can include accommodation and continues as long as the person needs these services. Accommodation can generally only be part of section 117 aftercare if:
• the need is for enhanced specialised accommodation (“accommodation plus”);
• the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); and
• the “accommodation plus” reduces the risk of the person’s mental health condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder.
11. Councils and CCGs must keep a record of the people for whom they provide aftercare services and what those services are.
12. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment.
13. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. FNC funding is set at a weekly rate. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for FNC and providing the funding.

What happened

14. Mrs N moved into a care home in Shrewsbury in January 2020 due to poor physical and mental health. When she moved into the care home her son Mr P, who has Lasting Power of Attorney for her property and finances, arranged for payment of her care fees from her savings. However, he also asked the Council and CCG to assess his mother’s needs, and in January 2020 a psychiatric nurse completed a checklist for NHS Continuing Healthcare (CHC) funding. The checklist was sent to the CCG but due to a backlog of casework the checklist was not processed until October 2020.
15. By November 2020 it had come to light that Mrs N had been detained under the Mental Health Act a few years earlier when she lived in Staffordshire. As a result of this, a social worker established that Mrs N’s care home fees should be paid for under s117 of the Mental Health Act 1983.
16. There were long delays in establishing which Council and CCG were responsible for paying for Mrs N’s care home fees under s117 of the Mental Health Act, and how far back the s117 aftercare funding should go. Mr P ended up complaining to Staffordshire County Council in June 2021 as the fees issue had not been resolved to his satisfaction. The Council acknowledged his complaint, and in August 2021 it said it would look into the issue. However, Mr P heard nothing further from the Council despite chasing the matter up every few months.
17. As he was unable to progress the complaint or get resolution, Mr P brought his complaint to the Ombudsmen in June 2022.

My assessment

18. After Mr P complained to the Ombudsmen, we contacted the Council and CCG and established that they had agreed to refund Mrs N’s care fees back to January 2020. The Council confirmed to us on 14 July that £64,838.85 would be refunded. The Council then confirmed on 19 July that the refund was being processed. Mr P has confirmed that this resolves his complaint.
19. Mrs N’s NHS-funded nursing care is paid for by her local CCG, a different organisation to the CCG responsible for her s117 aftercare. This arrangement will continue going forward, with her local CCG paying for her FNC, and NHS East Staffordshire Clinical Commissioning Group (now NHS Staffordshire and Stoke-on-Trent Integrated Care Board) having part responsibility for her s117 aftercare, along with the Council.
20. As the Council has now agreed to refund Mrs N’s care fees, and to recharge the CCG separately for their contribution to the fees, I do not consider there is anything further we could achieve from an investigation into this complaint. I do appreciate Mr P has been caused significant time and trouble pursuing this matter with the Council due to its lack of response. However, I do not consider this in itself to be sufficient to warrant an investigation.

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Final decision

21. I will not investigate this complaint as the issue has been resolved.

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Investigator's decision on behalf of the Ombudsman