Summary: Mr B complains about the Section 117 aftercare his brother, Mr C, received after he was discharged from hospital. The Council, Trust and ICB carried out an assessment of Mr C’s needs for Section 117 aftercare and put in place a support package over the following months. However, there was a delay in a review of the care plan in November 2022 and this was fault. The Council, Trust and ICB have agreed to apologise to the family and to pay a financial remedy.

The complaint

1. Mr B complains on behalf of his brother, Mr C who lacks the mental capacity to make the complaint. He complains about the Council’s failure to provide Mr C with appropriate care after Mr C was discharged from hospital.
2. Mr B’s complaint focussed on the Council’s actions, but as Mr C was receiving section 117 after care, I have investigated the actions of the London Borough of Harrow (the Council), the NHS North West London Integrated Care Board (the ICB) and the Central and North West London NHS Foundation Trust (the Trust).

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What I have and have not investigated

3. I have investigated events from 1 June 2022, when Mr C was discharged from hospital. Mr B is issuing a court application for judicial review regarding the actions of the organisations before 1 June 2022. I have therefore not commented on the care plan for Mr C or the actions of the organisations before 1 June 2022.
4. Mr B has also made a complaint about housing. That is subject to a separate investigation by the Ombudsman. I have not investigated the housing complaint but have referred to housing insofar as it was needed to provide context to the complaints I am investigating.

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The Ombudsmen’s role and powers

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. 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.
7. 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

8. I have considered the information that Mr B, the Council and the ICB have provided, the relevant law, guidance and policies and comments on the draft decision.

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What I found

Integrated Care Boards

9. On 1 July 2022, NHS England introduced the integrated care system. This involved the formation of local NHS partnerships responsible for producing an integrated care strategy on how to meet the health and wellbeing needs of the population in that area.
10. As part of the integrated care system, NHS England also introduced Integrated Care Boards. These organisations are responsible for managing the local NHS budget and arranging for the provision of health services in the area. The establishment of Integrated Care Boards resulted in the closure of clinical commissioning groups.

Section 117 aftercare

11. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3).
12. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need.
13. Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for.
14. Aftercare can include:

• Administration of medication for a mental disorder
• Social work
• Domiciliary services
• Day centres
• Psychiatric treatment
• Residential care
• Supported living or extra care housing (but not ordinary accommodation)

15. The ICB shares a statutory duty with the Council to provide, or arrange, s117 aftercare services for eligible service users in the area.
16. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance which includes guidance on Section 117 aftercare. This means that councils and ICBs must follow it, unless there are good reasons not to.
17. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT).

Reviews

18. A person’s eligibility for Section 117 aftercare should be reviewed within six weeks of their discharge from inpatient services. Eligibility should then be reviewed annually thereafter, or sooner, if circumstances change. The person’s allocated care coordinator is responsible for arranging the Section 117 reviews.

Care Act 2014 – support to carers

19. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out the Council’s duties towards adults who require care and support and towards carers who provide that care and support.
20. Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process.
21. Where an individual provides care for another adult and it appears that the carer may have their own need for support, local authorities must carry out a carer’s assessment.
22. Respite care - A carer’s assessment may identify that the carer’s needs for support could be met by arranging time away from the person they care for, for instance so that they can stay on top of other aspects of their lives, and that in order to achieve this services need to be provided to support the cared-for person in their absence.

Direct payments

23. The legal framework for direct payments is set out under the Care and Support (Direct Payment) Regulations 2014.
24. A person can also choose to receive direct payments to arrange the care and support themselves, rather than receive a direct service from the local authority.
25. Direct payments cannot be used to pay for care from a close family member living in the same household (except where the local authority determines this to be necessary).

What happened

26. Mr C is an adult man who has a learning disability and mental health diagnosis. Mr C was detained under Section 3 of the MHA.

27. A review hearing was scheduled for 31 May 2022. The plan was for Mr C to live in a supported living placement with support workers, but the organisations were still in the process of organising this. The family disagreed with the plan and wanted Mr C to return to live with them.
28. The Social Circumstances Report said: ‘due to the current level of aggressive behaviour, there is currently considerable risk to [Mr C] and others were he to be discharged to the community.’ It said: ‘Whilst the family have expressed a wish for [Mr C] to return to the current family unit it is neither safe nor practical for this to be considered.’

29. Mr C’s section 3 detention was rescinded on 31 May 2022. On 1 June 2022 Mr C returned to live with his mother and sister, Ms D, who shared a two-bedroom flat above a pub.
30. Mr C was entitled to section 117 aftercare services. The Council and the ICB were responsible for providing or arranging those services. They commissioned the Trust to provide Mr C with mental health services.

Assessment – 7 June 2022

31. The weekend of 1 June 2022 was a weekend of extended bank holidays. The Council’s social worker and the Trust’s nurse manager visited Mr C on 7 June 2022 and assessed his section 117 aftercare needs.
32. The Council completed a Care and Support Plan for Mr C and said he needed support:
• Once a day to maintain his personal hygiene,
• Once a day to be appropriately clothed,
• Three times a day to manage his toilet needs,
• More than three times a day to manage and maintain his nutrition,
• More than once a week to maintain a habitable home environment,
• More than once a week to make use of necessary facilities in the local community,
• More than once a week to develop and maintain relationships, and
• Three times a week to access and engage in work, training, education or volunteering.
33. The note of the visit said: ‘It was confirmed that the family does not require any support for [Mr C] at the family home as they are able to meet all his needs at home, but requested for support to enable [Mr C] to access day care services in the community, as well as other individualised activities [Mr C] is known to enjoy including swimming and horse riding. ‘
34. Mr C had limited communication skills because of his learning disability and because English was not his first language. The family said they would continue to be involved as they were able to communicate with Mr C. The family wanted urgent support in housing as they said the two-bedroom flat was unsuitable for Mr C.
35. A list of actions was agreed at the meeting and the main actions, relevant to Mr B’s complaint, were:
• Council to identify an appropriate day care package / personal budget for swimming / horse riding.
• Council to carry out a carer’s assessment of Mr C’s mother.

June 2022

36. The social worker emailed Mr B on 10 June 2022 as he had found a possible day care centre which specialised in meeting the needs of adults with learning difficulties. He proposed a visit to the centre on 14 June 2022.
37. Mr B replied on 12 June 2022. He said Mr C had attacked family members and this was linked to the noise from the pub below the flat which had been showing football games. Mr B said the housing issue had to be resolved urgently.
38. The family visited the day centre on 14 June 2022 and agreed the centre would be suitable for Mr C. The centre’s manager said he would hire a member of staff who spoke Mr C’s language.
39. The plan was for Mr C to attend the centre a few hours a day and this would gradually increase as he became more familiar with the centre. The family said that they were happy, initially, to take Mr C to and from the centre.
40. Mr B spoke to the social worker on 22 June 2022. Mr B said another brother, Mr E was now in the country and had been supporting Mr C. The social worker explained the day centre had difficulty in recruiting a male care worker who also spoke Mr C’s language. The social worker asked whether Mr C’s brother would be available to support Mr C at the day centre via an agency. Mr C said he knew his brother was looking for work but he would check.
41. Mr B replied on the following day and said his brother was not available but, Mr C’s sister, Ms D was looking for work and could assist. The social worker said that if any member of the family or any individual of the family’s nationality or within their circle of friends was available, the Council would support their enrolment with the agency.
42. Mr B had also enquired about the possibility of the Council paying for the family to have a break/holiday with Mr C. The social worker explained that respite support meant that the cared for person went away to give the family carers a respite break. However, in Mr C’s case the Council had agreed, on an exceptional basis, to pay for respite breaks for Mr C and the family.
43. The Council sent emails to Mr B on 27 June and 4 July 2022 regarding the registration process for Mr B’s sister so she could work for an agency at the day centre.

Review of care plan – 29 June 2022

44. The care plan was reviewed on 29 June 2022. The review noted:
• A day centre had been identified and Ms D was going through the registration process with the agency.
• The Council would carry out a carer’s assessment of Mr C’s mother and make a request for respite funding.
45. On 30 June 2022, the Council’s funding panel agreed funding in principle to fund a respite break, but said this was conditional upon a risk assessment because of the gravity of the risks related to the respite.

Risk assessment – 8 July 2022

46. The Council’s social worker and the Trust’s manager visited the family on 8 July 2022 to carry out the risk assessments for the requested respite break.
47. The assessment noted the substantial risks associated with Mr C having a respite break. The risks were:
• Physical aggression and assaults, spitting, scratching and hitting. Mr C, family members, support workers, members of the public, any services that had to become involved could be hurt as a result.
• Damage to property.
• Mr C was hypersensitive to noise which could trigger the behaviours.
• There was a risk associated with driving to the venue as Mr C had attacked his family when he was being driven in the past. There were no known triggers as Mr C could be unpredictable.
• The challenging behaviour may escalate while Mr C was away from the home.

Carer’s assessments – 11 July 2022

48. On 11 July 2022, the Council carried out carer’s assessments of Mr C’s mother, Mr B, Ms D, and Mr E. The conclusion of the assessments was that the following carer’s support would be provided:
• £250 direct payment to enable the carer to take a short break from the caring role.
• Introduction to Harrow Carer’s Support.

Funding agreement – 21 July 2022

49. On 21 July 2022 the section 117 funding was formally agreed. The package was funded 57% by the Council and 43% by the ICB.
50. However, the ICB said:
• It would not fund the respite break at a holiday park as the holiday park was not a registered placement where there was an assurance that the placement could meet Mr C’s needs. The respite location may be just as noisy as the flat and, if an incident took place and the ICB had funded the break, then the ICB could be liable for any consequences.
• Similarly, it would not fund the family to provide care unless they were registered with an agency.

July to August 2022

51. There were further communications between the social worker and Mr B on 24 July 2022. Mr B had advised his sister not to sign the contract with the agency as he was concerned about some of the terms and conditions. He said the family had declined support workers at the home as it had assumed that Mr C would be out of the home doing activities during the day, but this had not happened yet.
52. The social worker suggested to Mr B that the support worker could start by providing two hours support to Mr C to build up a rapport with Mr C and then that could be extended. The social worker updated the request to the Brokerage team to source workers who could provide support to Mr C in the community.
53. On 2 August 2022 Mr B sent an email and said that, instead of booking Airbnbs while waiting for the day centre to start, the Council should fund a two-week holiday to Turkey as this would cost the same.
54. It appears (but I may be missing an email) that, as Ms D was no longer going to work with the agency, the Council checked whether she could work as a direct employee of the Council.
55. The Council sent an email on 2 August 2022 to say that Ms D could not support Mr C as a paid employee of the Council as the Council’s insurance would not cover her to provide paid work at the day centre. Therefore, she would have to support him as an unpaid volunteer.
56. Mr B replied on 3 August 2022 and said he had suggested that a family member could support Mr C at the centre and he assumed it would be voluntarily. It was the Council which ‘explicitly said that in order to start him, she needs to be registered with [the agency] so she could be paid and covered to attend.’ He now found out she could have been a volunteer all this time. He was going to submit a ‘lengthy complaint’ about the delay which had been directly caused by the Council. He said his sister no longer agreed to support Mr C in any capacity.

Complaint – 4 August 2022

57. M B made a formal complaint on the following day and said:
• Mr C was discharged on 1 June 2022 and has not had any day-care support yet.
• There had been no carer’s support. The family had arranged gym membership and swimming. Unfortunately, horse-riding organisations had said Mr C was too overweight for horse-riding.
• He did not want his sister to sign the agency’s terms and conditions, ‘but we reluctantly did so anyway.’ The Council then decided his sister could only support Mr C as a volunteer.
58. On 11 August 2022, Mr B said his mother and brother would be going abroad tomorrow and come back at the end of August. He would drop Mr C off at the Civic Centre at 10:00.

Council’s offer – 11 August 2022

59. The Council replied on the same day and said:
• It offered direct payments to Mr B so that he could pay agency workers to support Mr C while Ms D and Mr E were abroad. The direct payments could be used flexibly and could be extended to engage in leisure activities in the community.
• The Council had found an agency which could provide support to Mr C. The carers had the ‘necessary expertise and knowledge to accommodate [Mr C’s] needs and service provision can commence as soon as possible’.
60. Mr B rejected the offer. He threatened legal action and continued to threaten to drop Mr C off at the Civic Centre.
61. The Council replied and said that was fine as it had found a placement which could take Mr C.

Review of care plan – 15 August 2022

62. There were further discussions on the following days and an agreement was reached on 15 August 2022:
• Mr C would start attending the day centre from 10 a.m. until 1 p.m. This would be increased to a full day once Mr C was settled at the centre.
• The Council had found an agency which could support Mr C. Mr C would receive 3:1 support (3 care workers) from 10 a.m. until 6 p.m. during the week.
• The Council had been informed that Mr C normally slept in the afternoon and so the plan was for Mr C to return home for this. However, the Council would continue to provide support until 6:00 pm as it was not known yet how long Mr C slept. This would be reviewed once the Council knew what the pattern was.
• The social worker had made a request to the Council’s Transport Hub to provide transport to and from the centre and was waiting for the reply. A taxi was being used in the meantime and the plan was for the agency workers to accompany Mr C.
• During the weekend, the Council would pay Ms D and Mr E to provide Mr C with ‘outreach community-based activities’ for 8 hours a day. So, the Council would pay 32 hours direct payments in total for the weekend.

Complaint response – 14 September 2022

63. The Council responded to Mr C’s formal complaint from June 2022 and said:
• The Council’s discharge plan had been to offer Mr C a bespoke supported living placement. The Social Circumstances Report submitted for the panel hearing made it clear that it was neither safe nor practical for Mr C to return to the family and the professionals had hoped that the family would formally accept this decision. A potential care provider had been identified in a neighbouring borough.
• However, the family had said that Mr C should return home. The family had said it did not want support for caring for Mr C at home.
• Mr C had complex needs and a history of challenging behaviour which meant it was initially difficult to find care workers to support him.
• Carer’s assessments had been carried out of Mr C’s mother, Ms D and Mr E and payments made of £250.
• Additional respite weekends had been provided.
• Ms D cancelled her application with the agency, not the Council. It said: ‘this proposal was later revised that sister should enrol as a volunteer and provide support this way for insurance purposes. The Council considered that it could not be liable if [Mr C] assaulted his sister at the day centre…’
• The Council had agreed direct payments for Ms D and Mr E.

September 2022 – holiday abroad

64. The family, including Mr C, went abroad on 7 September 2022 and returned on 28 September 2022. The care plan was suspended from 8 September 2022.

Review of care plan – 30 September 2022

65. On 30 September 2022 the social worker met with Mr B to review the care plan. The care plan was changed as follows:
• Mr C would re-start at the day centre on 2 October 2022, from 9:30 am until 12:30 am.
• Mr B said the support workers could be reduced to 2. One working with Mr C and one working at a distance.
• A member of the family would transport Mr C to the day centre and also support Mr C alongside the agency staff but the family member would withdraw once Mr C’s routine was established at the centre.
• The family would take Mr C to and from the centre ‘for the time being’.
• Mr B asked that, instead of the Council paying for agency staff to support Mr C at home in the afternoons during the week, the Council should pay Mr C’s brother via a direct payment. This would provide more flexibility in the afternoon as Mr C would often have a nap or would not engage with the care workers. The plan said: ‘Request is for direct payments to brother – 3 hours daily (Monday to Friday) 15 hours weekly rather than commissioned care via agency.’
• The social worker said safeguarding concerns had been raised about how the family supported Mr C, its use of unsafe restraint techniques on Mr C and administration of medication.

4 October 2022 - complaint

66. Mr B escalated his complaint on 4 October 2022 and said:
• He questioned that Mr C had complex needs and a history of challenging behaviour.
• There were delays in the carer’s assessments and the payments were not made until 21 September 2022. The payments were to provide respite, but respite was not offered.
• The provision of Airbnb every two weeks was not sufficient to meet Mr C’s needs.
• The manager of the day centre told them Ms D would not have been able to work through an agency. The family offered to volunteer first but was told Ms D had to work through an agency.
• The Council paid care workers from 10:00 am until 6:00 pm. A sum of the same amount should be paid to Mr C’s brother and sister from 1 June 2022 until 20 August 2022.

Best interest decision – 13 October 2022

67. A mental capacity assessment of Mr C dated 7 October 2022 concluded that he lacked capacity to make decisions about his care and accommodation needs.
68. A best interest decision meeting was held on 13 October 2022 to discuss where Mr C should live. At the meeting, four different options ranging from Mr C living with his mother to 24-hour residential care were considered. It was agreed that the best option was for Mr C to live with his mother and one family carer in the community.
69. The meeting also concluded that it would be in Mr C’s best interest if he was provided alternative accommodation.

October 2022 – further emails

70. Mr B sent further emails on 21 October 2022 and said:
• Previously the Council was providing 3 care workers from 10:00 am until 6:00 pm. Now it was providing 2 care workers from 09:30 am until 12:30 pm. The Council should pay Ms D and Mr E from 1 p.m. to 6 p.m. This could be decreased as the support at the day centre increased.
• Ms D and brother were unable to work because of the support they provided and this was not reflected by the Council.
• He had asked for the day centre time to be increased until 1 p.m. but had not heard back.
• He wanted this decision to be made quickly and backdated to when they arrived back from the holiday abroad.
• He wanted to resume the Airbnb respite on a fortnightly basis.
• He wanted support for transport. He said the family agreed to do this temporarily as Mr C was attacking taxi drivers and staff and did not want to attend the day centre. But the family had only agreed to provide this on a temporary basis, two weeks maximum.
• He repeatedly argued that the family’s care and support provided the Council with substantial savings and was cheaper than care plans where Mr C was not living with the family.
71. The Council replied on the same day:
• It would review the hours at the day centre in six weeks which was the usual review time.
• The family received payment for 15 hours during the week and 32 hours during the weekend, which could be used flexibly. The 3 hours support in the afternoon during the week was based on Mr C’s needs as Mr C often slept in the afternoon.
• The personal budget was based on Mr C’s assessed needs, not on what the Council was saving.
• No further payments had been agreed for respite as the Council had agreed to pay the family 32 hours direct payments during the weekend instead.
72. Mr B sent an email on 23 October 2022 and said:
• The Council’s reply was ‘sinister and without actual thought or reasoning.’
• Mr C’s previous care package was 3:1 support for 8 hours per day. This was reduced to 2:1 support for 3 hours a day. If the family did not support Mr C, the package would be 2:1 support for 8 hours, 5 days a week. So it was unreasonable for the Council to say that 3 hours support by one person was sufficient.
• The family had agreed to transport Mr C to and from the day centre on a temporary basis, but could not be expected to provide this support forever.
• He questioned the Council’s argument that the care plan was based on Mr C’s needs. He said that, if the Council reviewed the whole package, decisions and outcomes, they would find that, without the family’s input, the Council would be spending a lot more money.
• He said a review in 6 weeks was too long and, if an incident occurred and the family was unavailable, he hoped it would be ‘mitigated in a sensible manner.’
• He wanted to raise a formal complaint about the care plan.
73. On 11 November 2022 the Council proposed to carry out the 6-week review on 18 November 2022. However, it then had to re-schedule this date as the manager at the Trust was unable to attend because of an emergency.
74. On 22 November 2022 Mr B said the family had taken Mr C abroad because the pub below the flat was showing the World Cup games and the noise was affecting Mr C. Mr C returned to the UK on 1 December 2022.
75. Mr C restarted to attend the day centre from 5 December 2022. There was a lot of contact between the Council and Mr B in the following weeks, mostly related to the housing problems the family was experiencing.

Council’s response to complaint – 7 December 2022

76. The Council responded to Mr B’s complaint dated 4 October 2022 and said:
• It listed all the support it had been providing including day care, agency support workers, paying the family to provide outreach community based support, Airbnb respite, provision of a carer’s plan and a carer’s payment.
• It accepted that there had been delays in the actual payments of the Airbnb respite as it was trying to determine whether the ICB would agree to pay part of the Airbnb. The monies had now been paid.
• In response to the complaint that the Council should pay the family what it would have paid agency care workers, the Council said it was not automatically responsible for financial support for Ms D and Mr E.
• In response to the issues of Mr C having complex needs and challenging behaviour, it said this was well documented and was one of the factors the professionals considered when putting in place a support package. It noted that formal safeguarding concerns had been raised about the way the family provided support to Mr C.

Meeting – 20 December 2022

77. The social worker held a meeting with Mr B on 20 December 2022. There were escalating problems with the noise from the pub and the fact that the family was being evicted from the flat. The family wanted respite accommodation for the whole family.

Attendance at the Council – 23 December 2022

78. The family attended the Council’s offices on 23 December 2022 asking for emergency accommodation from the housing department. The family were informed that accommodation could be offered outside of London, but the Council could not put in place a care package at such short notice.
79. The Council said it would contribute to the cost of an Airbnb over the Christmas period.
80. The manager spoke to Mr B later that day and sent an email confirming the Council’s offer. He said the Council offered payments for up to 10 nights in a hotel and it would contribute up to £100 per room (2 rooms total). If Mr B preferred Airbnb then the Council would ‘like to agree on a sizeable contribution to this service.’

Email – 3 January 2023

81. On 3 January 2023 Mr B said that from 9 January 2023:
• The family would stop providing the transport to and from the day centre.
• The family would no longer provide care during the week in the afternoon. The family was providing more support than the 15 hours the Council paid for.

Response - 6 January 2023

82. The Council responded and said it had organised a review on 13 January 2023.
83. But it agreed to change the care plan in the meantime as follows:
• Mr C would start attending the day centre for a full day. The Council noted it would have preferred an incremental increase.
• Agency support staff would support Mr C from 9:30 am until 3:00 pm.
• It was in the process of arranging transport for Mr C with the Transport Hub but this could take up to 7 days. The Council agreed to pay the family £30 a day (£150 a week) for transport as a goodwill gesture.
• The Council was in the process of checking whether one of its providers was able to provide respite or alternatively, the agency could provide Mr C with support while he was receiving respite.
84. The Council held the review meeting on 13 January 2023. The notes of the meeting said Mr B was happy with Mr C’s current provision and thanked everyone for their involvement. He said he was aware that professionals and staff had ‘gone above and beyond their duty to ensure [Mr C’s] safety and wellbeing.’

Further complaint – February 2023

85. Mr B made further complaints in February mostly relating to his request for housing. The main complaints relevant to my investigation are:
• Mr B said the Council had withdrawn an offer of Airbnb in December 2022 and its offer of hotel rooms was not realistic. The Council said the Council had made an offer of hotel rooms or a contribution to Airbnb but Mr B had not contacted the Council over the Christmas period.
• Mr B said his mother and Ms D were subjected to violent attacks by Mr C, but the Council did not care as long as it saved money. The Council said ‘the incidence of violent attacks by [Mr C] bring into question this decision (note: that Mr C should live with his family) as the family’s ability to manage him safely can be challenging and as such, the need for alternate care for [Mr C] must be legitimately considered.’

Analysis

86. I do not underestimate the difficulties Mr C’s family has experienced since Mr C returned to live with the family. It has put the family under enormous strain, particularly when they are struggling to control Mr C’s behaviour, which can sometimes become violent. It is clear there were times when the family felt it was at breaking point and that the organisations were not understanding this or supporting them sufficiently.
87. I also appreciate the difficulties the organisations faced in formulating and delivering a care package. The combination of Mr C’s learning difficulties, mental health diagnosis, challenging and violent behaviour and language barrier made it a particularly difficult and complex situation. It would always have taken some time to find and then organise a suitable support package for Mr C.
88. In addition, I appreciate that the organisations had to balance several duties, not just the duty to deliver section 117 aftercare. The organisations also had a duty to safeguard Mr C and to manage any risks he posed both to himself, but also to the family and agency care workers and members of the public, if he was in the community. Balancing these competing duties was difficult.
89. It is not the role of the Ombudsmen to carry out an assessment of Mr C’s needs or to say what his care plan should be. I can only investigate whether the organisations have properly assessed Mr C’s section 117 aftercare needs, taking into consideration the relevant law, guidance and policies and. I have also considered whether they have provided the care as set out in the plan.

Care plan – 7 June 2022

90. I would always have expected that, realistically, it would take the organisations several weeks, at least, to formulate a care plan, find a day centre, find additional support workers and, once that had been done, obtain the necessary funding approvals for the finalised package.
91. Mr C was discharged from hospital on 1 June 2022 (a weekend of extended bank holidays) and the Trust and the Council visited Mr C on 7 June 2022 to carry out the assessment. I find no fault in terms of delay in the initial assessment.
92. One of the main actions identified following Mr C’s assessment on 7 June 2022 was for ‘an appropriate day care package to be identified.’ The Council was also going to pay for swimming and horse-riding.
93. The Council identified a suitable day centre very quickly so I find no fault in that respect. The family and the social worker visited the day centre on 14 June 2022 and everybody agreed it would meet Mr C’s needs.
94. There was then a delay and Mr C did not start to attend the day centre until August 2022. The plan was that Ms D would enrol with a care agency and support Mr C at the day centre, but this plan then did not materialise.
95. In the complaint correspondence, Mr B said the family had been forced into this plan so the delay was the Council’s fault. He said the family’s offer for Ms D to work as a volunteer at the day centre had been rejected, leaving the family with no option but to agree to the Council’s plan that Ms D enrolled with the agency.
96. I have considered the communications between Mr B and the Council. I cannot see that Mr B offered or enquired about Ms D volunteering. It appears both sides proceeded with the plan for several weeks until late July. Therefore, I cannot say that the delay was the Council’s fault but rather there was an agreed plan which did not work out and which was then changed.
97. Once the plan for Ms D to work at the agency fell through, the Council said it could not pay Ms D (presumably either directly or via direct payments) to support Mr C at the day centre as the Council’s insurance would not cover any liability if things went wrong. The Council then found an agency which could provide the care on 11 August 2022.
98. I have also considered the complaint relating to the provision of activities (swimming and horse-riding). The organisations agreed to pay for those activities at the assessment meeting on 7 June 2022. There was no agreement in the June plan for the organisations to provide a support worker to take Mr C to the activities.
99. This was first discussed, as far as I can see, in July 2022 after the plan for Ms D to join the agency to support Mr C was abandoned. Therefore, I cannot say there was fault in the organisations not providing a support worker for the activities in June and July 2022.

Care plan – 15 August 2022

100. The care plan was reviewed on 15 August 2022 and the plan was that Mr C attended the day centre in the morning and received 3:1 support from 10 a.m. until 6 p.m. from agency workers during the week. This would be reviewed once it was known how long Mr C slept in the afternoon. In terms of transport, the plan was for the agency workers to accompany Mr C in the taxi, to and from the centre.
101. I find no fault in the way the plan was decided at that stage. The organisations and the family agreed that this was the best way to support Mr C. I also note that the Council acknowledged that the plan may change in the future depending on Mr C’s needs and how well he adapted to the changes. It was always acknowledged that this was a plan that would require regular reviews.

Care plan – 30 September 2022

102. The family took Mr C abroad on 7 September and he returned on 30 September 2022 and the care plan was reviewed, at Mr B’s request. Mr B said the support could be reduced to 2:1 support. He also said the Council could cancel the 2:1 support in the afternoon and, instead, pay Mr E to provide 3 hours support in the afternoon. The Council agreed the amendments.
103. I find no fault in the way the Council made that decision. It involved Mr B and the family in the decision making. It considered Mr C’s needs and the fact that, at that time, Mr C had rarely needed or used the 3:1 support in the afternoon. He was often exhausted after the day centre and would sleep in the afternoon and not use the 3:1 support to do activities in the community. It appeared, from the minutes of the meeting that everybody agreed that the care plan of 3 hours support by one family member would meet Mr C’s needs.
104. The family also agreed to provide the transport to and from the day centre 'for the time being’. Unfortunately, there is no further detail on what ‘for the time being’ meant.

Request for additional support – 21 October 2022

105. Only 3 weeks later, from 21 October 2022 onwards, Mr B said the plan no longer met Mr C’s needs for the following reasons:
• Ms D and Mr E were providing more care and support during the afternoon than the 3 hours the Council paid.
• If the family did not provide the support, the Council would have to pay 2:1 support for 6 hours. The Council should pay the family the equivalent of what it would pay the agency workers.
• The family wanted the Council to start providing transport. The family had only agreed to provide transport on a temporary basis, for two weeks maximum.
106. Mr B’s argument that the family was saving the Council money and the Council should pay the equivalent of what it would have paid agency carers was not a factor that would have triggered the need for a review.
107. Nor was there a duty for the Council to pay the equivalent to what it would have paid if the care was provided by a care agency.
108. It is undoubtedly true that it would cost the Council (and the ICB) more if Mr C was placed away from the family, but that, in itself, did not mean the organisations had a duty to pay the equivalent of the cost to the family.
109. The Council (and ICB) had a duty to meet Mr C’s section 117 aftercare needs and to provide a care plan which set out how the needs would be met. The calculation of the cost would be based on the care plan as it was, not what it would be if care was provided in a different setting. Therefore, the organisations did not have a duty to pay the family members the equivalent of what they would have paid if Mr C was not placed with his family or if they were paying agency care workers. The needs for support would have been different and therefore the care plan would be different.
110. However, Mr B was also saying that the family was providing more support in the afternoon than the Council paid for and he wanted the Council to take over transport. These requests should have triggered a review and I note the organisations accepted this.
111. The review did not take place until 13 January 2023 and only after Mr B gave the Council an ultimatum. I note the Council had organised a review on 18 November 2022 which was cancelled because one of the professionals was unable to attend. I also note that Mr C then went abroad on 22 November 2022 until 1 December 2022.
112. Therefore, I am of the view that there was delay in the review as it should have taken place in November 2022 and that some of this delay was the organisations' fault.

Provision of respite

113. Respite care was not included in the initial care plan dated 7 June 2022 but the family asked for it on 22 June 2022.
114. The Council agreed to consider the request at the review of the care plan on 29 June 2022. On 30 June 2022, the Council’s panel said a risk assessment was needed before funding could be agreed. The risk assessment was carried out on 8 July 2022. Following this risk assessment, the Council agreed to fund the respite breaks, whereas the Trust did not as it was of the view that the risk was too great. The first respite break took place on 22 July 2022.
115. I accept that the organisations had to carry out the necessary risk assessments and go through the approval process before they could make a decision and there was no real delay in how this was progressed. Therefore, I do not find fault in the provision of respite up to this stage.
116. The Council ended the respite payments once Mr C started attending the day centre and the Council had agreed direct payments to pay family members at the weekend. That is a decision the Council could make and I find no fault in that respect.
117. The issue of respite was raised again on 23 December 2022. The family needed urgent rehousing and the noise problems in the flat above the pub were worse (Christmas season and World Cup) which affected Mr C’s behaviour. I am of the view that there was some fault in the Council’s offer of respite at this stage. I appreciate that everything was ‘last-minute’, but it appears that the Council agreed that Airbnb respite may be needed, but it did not say how much it would contribute to the cost so that made it more difficult for the family to take up the offer.

Carer’s assessment

118. The carer’s assessments were not part of the section 117 aftercare but it was the Council’s duty to carry out the assessments under the Care Act 2014. The Council correctly identified that there was a need for a carer’s assessment of Mr C’s mother at the assessment visit of Mr C on 7 June 2022. The Council carried out carer’s assessments of Mr C’s mother, Mr B, Ms D and Mr E on 11 July 2022.
119. I accept that these assessments could have been carried out a few weeks earlier, but on the other hand, it was useful for the assessments to take place once Mr C had returned to his family for a few weeks and the reality of caring for him could be assessed. So I would not say there was fault here in terms of delay.
120. The Council’s carer’s plan included a payment of £250 for each carer and the payments were made, albeit with a short delay for which the Council has apologised.

Remedy

121. The faults I have found are:
• The offer of respite on 23 December 2022 was not clear enough for the family to take up the offer.
• There was a delay in the review of the care plan by around 5 or 6 weeks.
122. The aim of the remedy is to put the complainant in the position they would have been if the fault had not happened.
123. In terms of the respite offer, the injustice is uncertainty of what could have been if the Council had made a clearer offer.
124. In terms of the delay in reviewing the care plan in November 2022, I cannot say what the outcome would have been if the care plan was reviewed earlier. Therefore, the injustice is uncertainty (distress) of not knowing whether the plan would have changed earlier if it had been reviewed earlier. I recommend the organisations pay £750 in this case for the following reasons.
125. Mr C is a person who requires a high level of support. Although the time delay and resulting uncertainty was relatively short, it was during a difficult time in December. Also, although I cannot say beyond reasonable doubt what the care package would have been, it is quite possible, particularly in relation to the transport, that certain elements of the care package would have been provided earlier.

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Agreed actions

126. The Council, ICB and Trust have agreed to take the following actions within one month of the final decision:

• Write to the family to apologise for the fault.
• Pay the family £750 (total, not each) in recognition of the frustration and distress caused.

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Final decision

127. I have completed my investigation. The Council, ICB and Trust have agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman