Summary: We consider Birmingham City Council and Birmingham and Solihull Mental Health NHS Foundation Trust acted with fault when handling Mrs X’s request to better support her son’s Section 117 aftercare needs. That fault caused Mrs X time and trouble and caused Y uncertainty.

The complaint

1. Mrs X complains on behalf of her son, Y, about Birmingham City Council (the Council), NHS Birmingham and Solihull Integrated Care Board (the ICB – previously the Clinical Commissioning Group) and Birmingham & Solihull Mental Health NHS Foundation Trust (the Trust).
2. She says the organisations poorly handled her request to increase Y’s Section 117 aftercare support in his Personal Health Budget (PHB). She says staff were not familiar with the process to change PHBs. Also, the Council wrongly said her son did not engage during an assessment, which partly caused the delay.
3. Mrs X says Y missed support to meet his mental health needs, and she bridged that gap in his support. They have both suffered distress. She has also suffered time and trouble. Mrs X would like the organisations to make changes to their process, and provide training to staff to ensure similar fault does not happen to others.

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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. When investigating complaints, if there is a conflict of evidence, the Ombudsmen 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. 
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 the information Mrs X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
9. Mrs X, Y and the organisations had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

10. 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 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 Section 117 cannot be charged for. This is known as Section 117 aftercare.
11. With a Personal Health Budget (PHB), people who are entitled to Section 117 aftercare can get their funding to support their mental health needs and buy the care they need. ICBs must ensure people who get a PHB have access to information and advice.
12. In 2022, the Parliamentary and Health Service Ombudsman and Local Government and Social Care Ombudsman jointly produced the ‘Section 117 Aftercare: Guidance for Practitioners’. It states: “Since December 2019, people eligible for Section 117 aftercare have a legal right to request a PHB. This is a sum of money the person can use to meet their identified Section 117 aftercare needs…A PHB is planned and agreed between the person and the responsible CCG [now ICB]. A PHB may be considered as part of the discharge planning process, when assessing the person’s Section 117 aftercare needs during their hospital admission. It may also be considered during any subsequent review of the person’s aftercare in the community”.

Local policies

13. The ICB’s ‘Personal Health Budget Policy’ recognised that after December 2019 people eligible for Section 117 aftercare state had a legal right to request a PHB to support their Section 117 aftercare needs.
14. In June 2021, the Council and ICB produced the ‘Section 117 Aftercare: Memorandum of Understanding’ (the MOU). The MOU states:
• 4.3 – Aftercare plans should include full consideration of how identified mental health needs can be safely met by universal mental health services.
• 4.5 - When a suitable care package has been identified the care co-ordinator (or other relevant clinician) and relevant social worker / social care worker should apply to the joint CCG/LA [local authority] funding panel for approval of the proposed aftercare package.
• 4.8 – Full costings and proposed S117 after care plan are a required part of each funding application. The application must clearly illustrate how the assessed needs are being met by the proposed package.
15. The local ‘S117 Mental Health Aftercare Funding Application Process’ explains how the NHS and local authorities can agree a package of Section 117 aftercare. It says:
• An NHS care coordinator should complete the Section 117 health funding application form, to record the service user’s mental health needs.
• At the same time, a social worker should carry out a Care Act assessment.
• Those two assessments feed into the ‘S117 funding tool’ (called Imosphere). The care coordinator and social worker jointly complete Imosphere, to give an indicative cost and funding split.
• The care coordinator and social worker submit those three documents above, as well as a care plan, to the ICB’s Joint Committee Team Funding Panel (the Panel). The Panel can return the application if insufficient information is supplied. The ICB and Council will agree Section 117 packages.
16. The local ‘S117 Review Decision Tree’ says that if a review has not been carried out in the last 12 months, staff should consider if there are any new risks or concerns which may indicate a review is needed. If so, there should be a joint visit by the service user’s care coordinator and social worker.

Key facts

17. Since 2015, Y was eligible for Section 117 aftercare following a detention under Section 3 of the Mental health Act at a private hospital in London (the Private Hospital).
18. In 2016, the Council commissioned a care package for Y. That included two Support Workers from Charity 1 for eight hours per week (each) to support Y at home and to access mental health groups.
19. In 2019, the ICB agreed to provide a PHB to manage Y’s mental health needs. Charity 2 managed Y’s PHB for the ICB. Y’s support plan noted he suffered with severe anxiety, depression and lacked confidence. It said he needed:
• Two Support Workers to support him at home and to access the community (funded by the Council).
• To employ a Personal Assistant for 12 hours per week.
• Two 30-minute sessions of Cognitive Behavioural Therapy (CBT) by phone per week from the Private Hospital.
• A CBT Therapist from the Private Hospital to visit him weekly.
• Occupational Therapy support from the Trust’s Community Mental Health Team (CMHT).
20. During COVID-19, Mrs X asked the Council to reduce the Support Workers’ hours from eight to four.
21. In March 2021, Mrs X told the ICB one of Y’s Support Workers had left. She asked to transfer those hours to the ICB’s PHB. She also requested an extra eight hours support at weekends.
22. On 4 June 2021, Mrs X told the Trust Y needed more emotional support. A few days later, a Consultant assessed Y. The Consultant noted Y’s severe anxiety and recent suicidal thoughts. The Consultant referred Y for daily visits by the Trust’s Home Treatment Team. The Trust also developed a CPA Care Plan:
• A CPN will check Y’s anxiety monthly.
• A CPN will check the effectiveness of Y’s therapy with a Support Worker.
• Y will access the community with his Support Worker to build his confidence.
• Y will continue to take medication to treat his mental health.
23. Around the same time, Mrs X chased the extra support from the ICB. The ICB asked a Community Psychiatric Nurse (the CPN), who worked for the Trust, and a Social Worker (the SW) for the Council to carry out a joint assessment. They needed to follow the local process and send a joint application to the Panel. The CPN agreed to update the SW and Mrs X. Mrs X was unhappy with the delay.
24. The CPN spoke to Mrs X and Y’s Support Worker on the phone in late June 2021. The CPN started completing the form to present to the Panel.
25. In early July 2021, Mrs X jointly met with the CPN (in-person) and SW (virtually). Mrs X said the SW was unfamiliar with the process to review Y’s PHB.
26. The CPN completed her form for the Panel in August 2021. Between July and September 2021, the CPN, Mrs X and the ICB struggled to get a response from the SW.
27. In late September 2021, the CPN and SW met with Mrs X and Y in-person to gather information to increase Y’s funding to meet his various needs. The SW said she could not complete her assessment as Y was not willing to engage. But later that day the CPN and SW submitted their application to the Panel. The CPN and SW recommended a 50% funding split between health and social care.
28. The same day, the ICB emailed the CPN. It was confused they had requested an increase to Y’s funding and also residential care. The ICB could not accept the referral because it lacked clarity. The SW also had not included their assessment. In response, the CPN told the ICB the request was not for residential care, but to increase Y’s support in the community.
29. In October 2021, Mrs X complained to the Council. In response, the Council said:
• The CPN and SW needed to jointly assess Y to understand how the Council and ICB would split Y’s funding under the PHB.
• It was sorry if it did not return Mrs X’s calls. The SW worked part-time which should have been communicated to Mrs X.
• The SW delayed completing a Care Act assessment because Y refused to engage in the process. But it apologised for the delay assessing Y.
30. In November 2021, Charity 2 chased the ICB for an update from the Panel. The Panel said it was still waiting for documents from the SW.
31. Over a month later, the CPN and SW carried out another joint visit of Y. The CPN and SW later completed their joint assessment in January 2022.
32. Mrs X made a further complaint to the Council in January 2022. In response, the Council said while the SW was not involved in Y’s care before March 2021, the Council had a legal responsibility to jointly assess Y’s entitlement to Section 117 aftercare.
33. In February 2022, the ICB told the CPN it was closing Y’s case because the request was five months old. The Panel would reconsider any new request.
34. In March 2022, Mrs X chased the Panel. The Panel said the September 2021 application was out of date. The ICB asked the CPN and SW to resubmit its application.
35. The same month, Mrs X complained to the Ombudsmen. Since Mrs X approached the Ombudsmen, the ICB, Trust and Council agreed to complete a new application. The ICB recognised that it was not clear how Y’s support was meeting his physical, mental health and social care needs. Also, there were concerns Y had not had CPA meetings, or receiving relevant therapy.

Analysis

Assessing Y’s Section 117 aftercare needs

36. By March 2021, the ICB and Council commissioned separate support to Y. But I do not consider the Council and Trust defined how its support was meeting his Section 117 aftercare needs. Y’s PHB support plan detailed care and support from the Council and Trust, without specifying what needs they were meeting (mental health, physical health or social care). That was fault. In June 2021, the Council and Trust should have effectively carried out a new holistic assessment of Y’s needs (including Section 117 aftercare) in line with the local policy. Once that was complete, the Council, Trust and ICB could have clearly identified what support was meeting Y’s mental health, physical health and social care needs.

The delay applying to the Panel in September 2021

37. From June 2021, the ICB, Trust and Council all understood it needed to review Y’s needs. Each organisation was aware of the local process to apply to the Panel to amend Y’s PHB. However, the Trust and Council significantly delayed submitting a valid application to the Panel. Since Mrs X raised her complaint to the Ombudsmen, the CPN and SW had still not submitted a valid application to the Panel. That was fault.
38. After the joint assessment in June 2021, the CPN and ICB chased the SW without a response. The Council told me the SW was absent from work and could not reallocate Y due to staffing pressures. I understand the pressures the Council faced at the time. However, I consider there should have been a strategy to manage the SW’s caseload, including Y. That was fault.
39. The Council also said the delay was partly due to Y not engaging with the SW during the September 2021 assessment. It told me it was happy for Mrs X to represent Y but needed to involve him. Unfortunately, the SW was not able to conclude the assessment without speaking with Y. Mrs X told me her son did not refuse to engage. Rather, Y found retelling his history of mental health to new people upsetting.
40. The ‘Care and support statutory guidance’ states: “An ‘assessment’ must always be appropriate and proportionate. It may come in different formats and can be carried out in various ways…”. In this case, Y’s anxiety was a barrier to completing a face-to-face assessment. I understand his engagement improved over time, and also that a joint assessment removed the need for multiple assessments. However, I do not consider the SW’s approach was proportionate considering Y’s anxiety. The SW decided they could only carry out a face-to-face assessment in September 2021. I have not seen any evidence the SW considered other ways to capture Y’s needs. For example, the SW could have considered a supported self-assessment (and consulting with Mrs X, the Support Worker and the Trust). Overall, I do not consider the SW acted in line with the Care Act 2014. The SW’s approach also meant she did not submit an assessment at all to the Panel, which was not in line with the local policy. That was fault.

The application to the Panel in September 2021

41. I consider the Council and Trust made that application to the Panel with fault.
42. The CPN and SW recommended the ICB and Council increase Y’s funding, and also sought residential care. I consider that was contradictory, and partly why the ICB did not accept the application. The CPN and SW were jointly responsible for completing the application. They should have ensured it was clear, accurate and reflected Y’s needs. So, I consider the CPN and SW did not act in line with the local process to assess Y’s Section 117 aftercare needs.
43. The ICB also noted the SW did not submit their assessment as part of the application. The CPN told the SW: “there is still assessments that you need to submit to the panel [sic]”. I consider the CPN appropriately chased the SW. The Council’s care records show the SW received that email but never responded. That was fault, which was not in line with the local process to assess Y’s Section 117 aftercare needs. Again, that contributed to delays submitting the application. Nothing happened with Y’s application until Charity 1 chased the Council in November.
44. Between September 2021 and March 2022 (when Mrs X complained to the Ombudsmen), Y’s application had not progressed. The application had actually expired by 2022, and nobody communicated that to Mrs X. I consider that had the CPN and SW have communicated better, the PHB request would have been completed sooner.

The injustice to Mrs X and Y

45. I have explained how the Council and Trust acted with fault when handling Mrs X’s request to increase Y’s Section 117 aftercare support. By June 2021, the Council and Trust had clearly not identified what support would meet those needs. Then after June 2021, when jointly assessing Y’s needs, the CPN and SW’s application was confusing and incomplete. This no doubt delayed the process. By the time I made enquiries to the Council and Trust as part of my investigation, they had still not submitted an valid application to the Panel. That caused Mrs X time and trouble chasing each organisation for a response.
46. The Council and Trust’s records show they were taking some action to support Y’s mental health needs. However, the Trust’s records show in June 2022, it was unclear if the Trust carried out CPA meetings or provided therapy to support his mental health needs. If the Council and Trust handled Y’s PHB request in line with the local policy, then on the balance of probabilities, they would have understood what support would meet his Section 117 aftercare needs sooner. I cannot say what support Y should have received, so that leaves him with a sense of uncertainty. I also do not doubt that would have been a distressing time for him.

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Agreed actions

47. Within four weeks of this decision, the Council and Trust should apologise to Mrs X and pay £150 each for the time and trouble she suffered.
48. Within four weeks of this decision, the Council and Trust should apologise to Y and pay £300 each for the uncertainty and distress he suffered by poorly handling the PHB request.
49. Within four weeks of this decision, the Council should explain what action it has taken to ensure service users receive continuity of care, when their social worker takes extended leave.
50. Within eight weeks of this decision, the Council, Trust and ICB should jointly review the ‘S117 Mental Health Aftercare Funding Application Process’ and the MoU. Each organisation should ensure those policies do not contradict each other and ensure service users receiving PHBs for their Section 117 aftercare do not experience similar fault.
51. Within eight weeks of this decision, the Council and Trust should ensure relevant staff are aware of the local policy to assess/review PHBs for service users receiving Section 117 aftercare.

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Final decision

52. The Council and Trust did not understand what Y’s Section 117 aftercare needs were in 2021. Then when Mrs X requested changes to Y’s support, the Council and Trust did not follow the local procedure to amend his PHB. That led to significant delays, which caused an injustice to Mrs X and Y which the organisations have agreed to remedy.

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Investigator's decision on behalf of the Ombudsman