Summary: The Ombudsmen do not consider NHS Devon CCG’s decision to stop Mr U’s personal health budget for his section 117 aftercare was made with fault. Devon Partnership NHS Trust’s assessment of Mr U’s needs was robust and there was no fault in the way it decided a care agency could support his needs. Also, the Ombudsmen do not consider Devon Partnership NHS Trust were at fault for not providing Mr U with a care coordinator after March 2018.

The complaint

1. Mr U complains that NHS Devon CCG (the CCG) stopped his personal health budget for his section 117 aftercare in July 2018. Mr U says Devon Partnership NHS Trust (Devon Partnership) reduced the budget available to meet his mental health needs without reassessing what those needs were. Mr U also complains about the lack of support from a care coordinator.
2. Mr U says the lack of support for his mental health needs has affected his own mental health and his relationships with friends and family.
3. Mr U would like Devon Partnership to let him coordinate his own care again with a personal health budget. He would also like it to provide him with a care coordinator.

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The Ombudsmen’s role and powers

4. 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).
5. 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.
6. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
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 considered information Mr U provided in writing and by telephone. This includes documents by the organisations complained about. I have taken the relevant law and guidance into account. I have also written to Mr U and the organisations with my draft decision and considered their comments.

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What I found

Key facts

9. Mr U received section 117 aftercare to meet his mental health needs. This included obsessive compulsive disorder (OCD), post-traumatic stress disorder (PTSD) and Asperger’s syndrome. The CCG provided Mr U with a personal health budget to manage his own needs flexibly.
10. In January 2018 Devon Partnership told Mr U the CCG would stop providing personal health budgets to meet section 117 aftercare needs. Mr U needed to meet his care team to review his needs and agree a new care package.
11. Devon Partnership offered to meet with Mr U to assess his needs between March and May 2018. In June and July, Mr U met with Devon Partnership to assess his needs. Two social workers, a service manager, Mr U’s care workers, an advocate and his brother were present. The assessment noted Mr U’s care needs, which included:
• Maintaining his home environment, which included two garage spaces.
• Managing his tenancy.
• Cooking and moving away from unhealthy meal choices.
• Shopping and paying for items.
• Help when he gets ‘stuck’ due to his OCD.
• Transport around the community – 15,000 miles per year.
• Help with employing staff.
• Keeping an active lifestyle to manage his physical and mental health.
• Craft Therapy.
• Volunteering with his sound engineering background – attending gigs and festivals.
• Attending Pagan ceremonies which improve his social wellbeing.
• Rebuilding the relationship with his father.
12. In response to Mr U’s complaint, in July 2018, Devon Partnership told Mr U the CCG had decided to only provide a personal health budget to people with continuing healthcare. It was trying to complete a review of his needs and agreed to extend the personal health budget until Mr U agreed a new care package.
13. After the June 2018 assessment of Mr U’s needs, Devon Partnership worked with Mr U until September to confirm what his aftercare needs were. Devon Partnership also agreed it would continue to fund Mr U’s personal health budget until October when it stopped.
14. During September and October 2018, Devon Partnership worked with Mr U after he said his support staff were exploiting him financially. That ended up as a safeguarding investigation.
15. After October 2018, Devon Partnership decided a care agency could support his needs. However, as an interim, it would provide Mr U with a direct payment to pay his staff until it agreed a way to meet his needs with a care agency.
16. On 5 December 2018, Devon Partnership met with Mr U and suggested a care agency could support his needs. Mr U did not agree and left the meeting.
17. On 12 December 2018, Devon Partnership met with Mr U, his father and a specific care agency (the Agency). Devon Partnership noted:
• Mr U had two main needs – getting ‘stuck’ and his inability to dispose of things he touches (both due to his OCD).
• The Agency needed to be creative and flexible with the hours of support, as he liked to be out late.
• Mr U agreed to meet the Agency to discuss how they could meet his needs.
18. After the meeting, the Agency told Devon Partnership it could meet Mr U’s needs. The Agency then met with Mr U on 16 December 2018 and noted:
• Mr U did not want set start and finish times because he wanted to stay out late at gigs. The Agency said it could provide him with shorter and longer days for support to cater for that.
• Mr U was unhappy with Devon Partnership’s proposed mileage of 7000 per year at 0.42p. The Agency said its rate was 0.30p, which would increase the mileage to 9800. However, Mr U said he needed between 12 and 15,000 miles per year.
• The Agency offered to start supporting him from mid‑January 2019.
19. In late December 2018 and early January 2019, Devon Partnership tried to get Mr U to work with the Agency. The Agency tried to assess Mr U, but Mr U refused to work with them.
20. On 7 January 2019, Devon Partnership wrote to Mr U. It said it would not be providing Mr U with a direct payment to manage his own care. This was due to the challenges he had previously faced employing his own staff. Devon Partnership said people could exploit Mr U and impact the provision of aftercare. Rather, the Agency could develop a personalised support plan. Also, Mr U would still receive a direct payment for needs which did not involve employing staff.
21. Devon Partnership said Mr U had six goals - keeping a habitable home, good personal care and nutrition, improving personal relationships, getting into the community and working towards employment. It explained what services would meet Mr U’s needs. It asked for Mr U’s comments on:
• A care agency to provide 12 hours support every day. This included staff costs, extra hours when going away and transport costs (7000 miles per year with a further review after three months).
• A direct payment for Mr U or social inclusion and activities. It agreed to fund two garages for six months. After six months it would only fund one garage until further review. Also, it agreed to fund a company to run and manage the direct payment.
22. Mr U did not accept the Agency’s support because he felt Devon Partnership’s support plan was not flexible enough or person centred.
23. In mid-February 2019, Mr U’s father told Devon Partnership to start the Agency’s support. However, Mr U became increasingly hostile and did not accept the support from the care agency.

Analysis

24. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.
25. In this case, the Council has a section 75 agreement with Torbay and South Devon NHS Foundation Trust to provide its adult social care service. However, Devon Partnership led the assessment of Mr U’s health and social care needs.  
26. The Ombudsmen will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and council work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility.

The decision to stop Mr U’s personal health budget

27. 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. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the persons 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 persons mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
28. Before February 2019, some people entitled to section 117 aftercare received funding for health and social care support as a personal health budget so they could buy the care they need, using direct payments. However, it was not a legal right. In February 2019, The Department of Health and Social Care (the Department) announced the legal right to a personal health budget to people eligible for section 117 aftercare services.
29. Devon Partnership said the decision to stop his personal budget was because of a change in policy. However, Mr U’s personal health budget did not stop in July 2018. It remained in place until Devon Partnership agreed a new care package with him.
30. Mr U says Devon Partnership and the CCG’s decision was not in line with guidance from the Department. However, I do not agree. The Department’s decision was 11 months after the CCG decided to only provide personal health budgets to people receiving continuing healthcare funding. I do not consider Devon Partnership’s and the CCG’s decision was fault.
31. Mr U told me he feels the CCG’s decision to stop his personal health budget was because he made a complaint about the company handling his direct payments. I have reviewed all the documents provided by Mr U and the organisations involved. I found no evidence to support Mr U’s allegation.

The assessment of Mr U’s needs

32. The Ombudsmen are not a right of appeal against Devon Partnership’s decision about how it would support Mr U’s needs. My role is to review the process Devon Partnership followed when deciding how to provide its section 117 support to him.
33. Mr U said Devon Partnership’s June and July 2018 assessments did not reflect his needs. He said its assessment:
• Did not include his carer’s and brother’s view he should manage his own care;
• Did not consider he suffered PTSD from other organisations provision of support; and
• Ignored the flexibility he needed to attend his religious rituals and events. Also, his religious society needed to feel comfortable with a support worker attending events.
34. I have reviewed the assessments in June and July 2018. During the assessment, Devon Partnership noted Mr U wanted “To be in control of my on [sic] care, support and finances through self‑directed care”. The assessment did not note Mr U’s brother’s views on that matter. However, I still consider it was aware of Mr U’s wish for self‑directed care when it decided how to support him.
35. In the summary of the assessment, Devon Partnership noted: “During [Mr U’s] period of detention [Mr U] developed serious symptoms associated with PTSD as a result of the ‘miscare’ [sic] that [Mr U] was receiving. [Mr U] experiences flash backs/ night terrors and night sweats as a result of these experiences”.
36. Devon Partnership understood Mr U’s reluctance for a care agency to provide support due to his PTSD. Therefore, it slowly introduced the Agency, allowing Mr U to meet them first, in the hope they could build a relationship before commissioning the support. I consider Devon Partnership took Mr U’s PTSD into account as part of the assessment.
37. Devon Partnership noted Mr U’s religious belief and recognised the importance for him to attend ceremonies with someone who was open minded and “not a person sitting on the outside looking in”. I do not consider Devon Partnership ignored Mr U’s spirituality during the assessment.
38. Overall, I consider Devon Partnership’s assessment of Mr U’s needs was robust and found the cost to meet his needs had increased from the last review – from £1,952.16 to £2,022.56. I have not found fault with Devon Partnership’s assessment of Mr U’s section 117 aftercare needs.

The Agency

39. After Devon Partnership explained it would be stopping Mr U’s personal health budget, there were lengthy disagreements about how his section 117 funding was to be managed. Mr U wanted a direct payment to manage the care package.
40. Mr U suffered distress when managing his personal health budget. He had issues with his care staff, their behaviour and paying them. This resulted in a safeguarding investigation in September and October 2018.
41. I understand Devon Partnership were trying to reduce the distress Mr U might suffer if he was responsible for managing his own care. It believed the only way to reduce the potential harm to Mr U was for the Agency to support his needs.
42. Overall, I do not consider Devon Partnership was at fault in the way it decided the Agency could support his needs.

The lack of support from a care coordinator

43. 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. The CPA is commonly used for people receiving section 117 aftercare.
44. Devon Partnership told me it did not manage Mr U under the CPA because his needs did not support its use. Mr U did not take any medication, did not receive any therapy and his support was solely to engage in the community.
45. Mr U had a care coordinator from January to March 2018, but their relationship broke down. After then, Devon Partnership tried to assess Mr U’s needs and was also managing his temporary support.
46. Mr U was directing his own care throughout 2018, and at times had issues doing so. Devon Partnership’s case notes show the team manager and social worker were supporting Mr U at those times. For example:
• Mr U told Devon Partnership about his carers financially exploiting him. In response, Devon Partnership made a safeguarding referral to the Council and supported him during that process.
• In October 2018 the social worker provided websites to help Mr U replace staff.
• In November 2018 the social worker told Mr U how he could pay his staff more easily.
47. Mr U would have had reassurance with a care coordinator. However, I do not consider Devon Partnership was at fault for not providing one after March 2018. The examples above show that Mr U was still receiving support and direction from Devon Partnership, despite not having a care coordinator in place.

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Final decision

48. I do not consider there was fault in the way the CCG’s decided to stop Mr U’s personal health budget.
49. I consider Devon Partnership’s assessment of Mr U’s needs was robust and there was no fault in the way it decided the Agency could support those needs. Also, I do not consider Devon Partnership were at fault for not providing a care coordinator after March 2018.

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Investigator's decision on behalf of the Ombudsman