Summary: Mrs B complained the Council and the ICB failed to pay for her late mother’s, Mrs G, residential care home placement in line with the Mental Health Act 1983 after the family moved Mrs G to a care home. We found the Council took too long to review Mrs G’s care and support arrangements after she left hospital and when she lived in the community. The Council acted to improve its processes and reminded its officers of completing reviews without delay. We did not find the delay to review Mrs G’s care and support arrangements led to the claimed injustice that the Council and the ICB should have paid for her residential care costs in line with the Mental Health Act 1983 after her family moved her to the care home.

The complaint

1. The complainant, Mrs B, says Essex County Council (the Council) and NHS Suffolk and North East Essex Integrated Care Board (the ICB) failed to meet her late mother’s (Mrs G’s) aftercare needs between October 2019 and February 2024. Mrs B says the Council’s and the Essex Partnership University NHS Foundation Trust (the Trust) delayed completing a review of her mother’s care and support arrangements when she was discharged from hospital. She also complains the late assessment of her mother’s needs did not properly consider her mental and physical decline which meant the family had to place her in a residential care home. Mrs B feels if the family did not do this her mother would have been readmitted to hospital.
2. Mrs B says the Council and the ICB should reimburse the care fees her mother paid for the residential placement as she remained entitled to aftercare services in line with the Mental Health Act 1983.

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The Ombudsmen’s role and powers

3. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
4. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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). 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, we 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 we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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

7. I have considered information provided by the complainant, the Council and the Trust.
8. I have considered the law and guidance relevant to this complaint.
9. All parties had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

Legal and administrative considerations

10. 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’. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
11. The purpose of detention under section 2 of the Mental Health Act 1983 is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
12. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
13. Anyone who may need community care services is entitled to an assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47 and 48 of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
14. 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.
15. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and ICBs 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.
16. Councils and ICBs must keep a record of the people for whom they provide aftercare services and what those services are.
17. The Code says councils and the NHS “should interpret the definition of after-care services broadly. For example, aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition... As well as meeting their immediate needs for health and social care, aftercare should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.
18. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
19. Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan no later than every 12 months. A light touch review should be considered six to eight weeks after the plan and personal budget have been agreed. The review should be performed in a timely manner proportionate to the needs to be met. In addition to the duty on councils to keep plans under review generally, the Act provides a duty on councils to conduct a review if a request for one is made by the adult or a person acting on the adult’s behalf.

Background

20. Mrs G had a diagnosis of Lewy Body Dementia (brain disorder that can lead to problems with thinking, movement, behaviour and mood). She presented with psychosis and hallucinations.
21. Mrs G was detained under section 2 MHA 1983 in March 2018, this changed to section 3 in May 2018. She was discharged home from hospital with a homecare package in September 2018 funded under s117. This consisted of 9 hours of weekly care and support within her home in the community (domiciliary care).
22. The Council and the Trust confirmed a section 117 aftercare plan was not completed at the time. The Council confirmed the homecare was provided under the terms of section 117 of the MHA. The support consisted of prompts with personal care, preparing meals, supervising medication and supervision with medication.
23. The documentary evidence states the goal of the support was to support Mrs G with personal care and shopping in the community. A discharge summary completed by the Trust confirmed a follow up face-to-face appointment would be completed within 7 days of the discharge date.
24. Mrs B said the Council should have completed a review of Mrs G’s care and support arrangements within 4 to 6 weeks but this did not happen. Mrs B said the Council did not make any contact with Mrs G or other family members.
25. Leading up to October 2019 Mrs B and other family members had concerns about Mrs G’s wellbeing. Mrs B said Mrs G’s mental health deteriorated and she was not safe at home. She said Mrs G had shown signs of self-neglect and had refused carers entry to her home. Mrs B and other family members then made a decision to move Mrs G to a residential care home.
26. The Council said it completed a review of Mrs G’s needs while she was in the residential care home in December 2019. It assessed Mrs G had needs which could be met within the community by increasing the home care package by a few hours. It also said Mrs G wanted to return home but her family did not want her to.
27. The Council completed a review of Mrs G’s needs in July 2020. Mrs B felt her mother had settled well in the home and the family believed she would not manage at home due to risk of falls. The document recorded a section 117 aftercare plan was not completed when Mrs G was discharged from hospital. The assessor completed a section 117 plan as part of the review.
28. The review document stated the only section 117 need identified was the depot injection she received via the community mental health team. The review identified Mrs G had needs which now required 24-hour residential care. The assessor said these needs fell under the terms of the Care Act 2014 rather than the MHA 1983. The assessing officer concluded Mrs G had could make the decision to stay at the residential care home and would continue as a self-funder as she did not meet the eligibility threshold.
29. The Council and the NHS complete a further section 117 review in March 2022. This review reached the same outcome as the previous review. The section 117 needs included Mrs G’s mental health medication. The residential care home placement was listed as a separate privately funded arrangement.
30. Mrs G remained in the residential care home from October 2019 until her death in February 2024. During the period of the placement Mrs B complained to the Council and the NHS about the decision not to fund Mrs G’s placement in the home as aftercare services in line with the MHA 1983. The Council and the NHS maintained Mrs G’s need for residential accommodation was because of her needs which fell under the Care Act 2014.

Findings

31. The Council and the ICB did not ensure a section 117 aftercare plan was written at the time of Mrs G’s discharge. This is fault. Mrs G was entitled to section 117 aftercare services when she was discharged from hospital in 2018. The evidence available confirms the homecare package she received when she lived at home and the depot injection was provided as aftercare services in line with section 117 of the MHA 1983 without charge. It is therefore unlikely Mrs G was caused injustice because of this fault.
32. The Council said it has since changed the process to ensure officers record all discharge plans on its system using a prescribed template. It is therefore not necessary to make a further recommendation for improvement.
33. When Mrs B and other family members noticed a decline in Mrs G’s mental and physical health I have not seen evidence to show they contacted the Council, the NHS Trust or the ICB to report this. When Mrs G was detained in hospital her family had contact with the authorities when discussing discharge arrangements. Therefore, it would have been reasonable for the family to have contact the Council or the NHS Trust. However, the lack of contact to complete a review once Mrs G was in the community may have contributed to this.
34. It is likely the Council should have completed a review of Mrs G’s care and support arrangements rather than the NHS Trust. The NHS Trust may have been acting on behalf of the Council to complete reviews but the Council remained retained statutory responsibility for the assessment and review process. I therefore do not find the NHS Trust at fault.
35. The Council did not complete a review of Mrs G’s care and support arrangements after her homecare started in September 2018. The evidence available suggests the Council did not complete a review until Mrs G had move to the residential placement. This is fault and not in line with the care and support statutory guidance. However, I cannot say this caused injustice to Mrs G as when the review was completed it resulted in only a slight increase in support hours only.
36. Mrs B says the Council and the ICB had a joint duty to meet the costs of Mrs G’s placement in the residential care home as the placement met her needs which fell under the MHA 1983. It is for the Council and the ICB to arrange or provide aftercare services following an assessment of a person’s needs.
37. The care and support initially provided met Mrs G’s aftercare needs while she was in the community living in her own home. The evidence available suggests she was at risk of deterioration in her mental health without this support which could have resulted in readmission to hospital. This risk was present when she lived in her own home in the community.
38. When Mrs B and other family members decided to place Mrs G in the residential care home it is likely, on balance, the risk was minimised because she had 24 hours daily of care from the home and was no longer living in the community. The family could not decide what constituted despite their concerns about Mrs G’s health and wellbeing.
39. Case law confirms that accommodation is a common need for all people. Therefore, for accommodation to be an aftercare need, the person must have a need for accommodation plus. This means the person needs enhanced specialised accommodation to meet needs arising from or related to their mental disorder. The need must be as a direct result of the reason the patient was detained. The accommodation must reduce the risk of a deterioration in the patient’s mental health that may result in potential readmission to hospital for treatment.
40. After Mrs G was in the residential placement the Council completed several assessments which initially established Mrs G’s needs could be met in the community with up to 14.5 hours of care and support. Mrs G chose to remain in the care home under a private arrangement. I do not find the Council and the ICB should have funded her placement under the terms of the MHA 1983.
41. The Council later assessed Mrs G had a need for residential accommodation but because of her needs which fell under the Care Act 2014. There is no evidence of fault in the way the Council made this decision.

Conclusion

42. Mrs G was entitled to section 117 aftercare services when she was discharged from hospital after being detained under the terms of the MHA 1983. The Council provided services while Mrs G was in the community but did not ensure this was written into a section 117 aftercare plan agreed with the health authority. However, the Council provided services without charge and is unlikely Mrs G was caused injustice because of this fault. The Council also improved its processes.
43. The Council delayed in completing a review of Mrs G’s care and support arrangements for over 12 months. It is unlikely this caused Mrs G injustice as when it did review her needs the change was minimal. There is no evidence to show the Council and the ICB should have funded Mrs G’s residential accommodation because of her mental health needs after her family placed her in a care home. It is likely her need for accommodation was because of her physical health needs falling under the Care Act 2014.

Update on recommendations

44. In response to my draft decision the Council provided evidence to show it had already reminded its officers of the importance of completing reviews of care and support arrangements in a timely manner in line with the care and support statutory guidance. This is found in the Council’s Core Practice Guidance dated April 2024 and Practice Management Standards dated March 2024. Therefore, it is not necessary to make another recommendation.

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Final decision

45. I do not uphold Mrs B’s substantive complaint about the accommodation charges. I find fault in the time taken by the Council to complete a review of Mrs G’s care and support arrangements, but this did not lead to the claimed injustice that the Council and the ICB should have paid for Mrs G’s accommodation charges when she moved to the residential care home. The Council acted to improve its processes. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman