Summary: The Ombudsmen will not investigate Mrs X’s complaints that the Council has refused to refund her late mother (Mrs Z’s) care fees and that the Clinical Commissioning Group (CCG) has refused to reconsider its decision about NHS care funding. The CCG has now reviewed its decision about NHS funding. I have asked the Council and CCG to reconsider whether the residential care should have been free aftercare under the Mental Health Act 1983.

The complaint

1. Mrs X complains through legal representatives that
• the CCG refused to reconsider its decision about NHS care funding for Mrs Z’s care in 2001 to 2006 in light of new evidence that became available in 2016
• the Council failed to treat Mrs Z’s residential care as free aftercare under section 117 of the Mental Health Act 1983, and failed to tell her family of her eligibility for this funding.
2. Mrs X says that this has caused her financial loss as well as unnecessary time and trouble in complaining.

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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 provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they consider that:
• it would be reasonable for the organisations to carry out a further review, and/or
• the organisation(s) have taken or will take suitable action to resolve a 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

5. I have considered the information provided in writing and by telephone by Mrs X’s solicitors, the CCG and the Council.

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What I found

6. 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’. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf.
7. Under the Mental Health Act 1983, 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’.
8. Section 117 of the Mental Health Act imposes a duty on health (NHS CCGs) and council 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 Mental Health Act (e.g. Section 3). Aftercare services provided under section 117 cannot be charged for. This is known as section 117 aftercare. Councils and CCGs cannot delegate accountability for section 117.
9. When a person is entitled to services under section 117, they are not entitled to CHC for those services. However, they may be entitled to CHC for other care needs as well as section 117 aftercare for the needs arising from their mental disorder.
10. When the person needs residential care or specialist accommodation this is only eligible for section 117 aftercare if
• the need for it results from the mental disorder that originally led to the detention, and if
• the need is for specialist accommodation to meet the needs directly arising from the original condition.

Complaint analysis

11. In October 2015, the CCG replied to a complaint from Mrs X’s solicitors. In its reply, the CCG offered to review a decision on Mrs Z’s eligibility for CHC funding between 2000 and 2006 in light of any new information the solicitors provided.
12. In July 2016, Mrs X’s solicitors wrote to the CCG to say they had reviewed their records and compiled a detailed medical assessment (DMA) and that their records indicated Mrs Z was entitled to free section 117 aftercare. An NHS Trust acting for the CCG wrote, but did not send, a reply to the solicitor in August 2016 stating that
• there was still not enough evidence to award CHC
• it agreed Mrs Z should have been funded through section 117 aftercare
• the solicitors should contact the Council’s social services to pursue section 117 matters.
13. The solicitors did not get that letter and pursued the CCG for a response, but did not send the DMA. This continued until September 2018, when the CCG sent the solicitors its letter from August 2016.
14. The solicitors contacted the Council to ask about section 117 funding. The Council confirmed that Mrs Z was entitled to section 117 aftercare, but said that
• because of the time that had passed and scarcity of records, it could not say what services formed Mrs Z’s aftercare,
• it did not consider Mrs Z’s residential care would have been part of her section 117 aftercare,
• it would review this decision in light of any new information provided by the solicitors.
15. The solicitors complained to the Ombudsmen.
16. In response to my initial enquiries, the CCG and Council have agreed to look at their decisions again in light of the solicitors’ DMA. Mrs X’s solicitors have sent the DMA to the Council and CCG. The CCG has reviewed the CHC decision and will write to Mrs X’s solicitors to inform them of the outcome. The Council is yet to complete its review of Mrs Z’s CHC eligibility. I have asked it to involve the CCG in that review.
17. My view is that the Council and CCG have now taken appropriate action to deal with Mrs X’s complaint to the Ombudsmen.

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Final decision

18. The Ombudsmen will not investigate Mrs X’s complaint about the CCG’s refusal to review a decision on CHC eligibility and the Council’s decision on section 117 eligibility. The CCG has now reviewed its decision. The Council has agreed to review its decision. The Ombudsmen are satisfied that these are reasonable actions in response to the complaint.

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Investigator's decision on behalf of the Ombudsman