Summary: Ms A has complained on behalf of a supported accommodation placement that the Council and Integrated Care Board have not paid accommodation costs for a placement from March 2022. We found fault with the Council, the Trust and the Integrated Care Board the Council and Integrated Care Board have now agreed to pay the accommodation fees and apologise to Ms A.

The complaint

1. Ms A has complained about London Borough of Croydon Council (the Council), NHS South West Integrated Care Board (the ICB) and South London and Maudsley NHS Foundation Trust (SLAM). This is due to the Council and ICB not covering the costs of a resident’s (the Resident) supported accommodation since March 2022 under the Resident’s section117 aftercare plan. In addition, Ms A has said the Council and SLAM wrongly advised her to apply for housing benefits to cover the Resident’s accommodation costs.
2. This has led to a financial loss for Ms A's company which houses the Resident. Ms A wants the rent arrears paid going back to March 2022.

Back to top

The Ombudsmen’s role and powers

3. 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).
4. 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. 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)

Back to top

How I considered this complaint

6. During my investigation I have considered information from the Council, SLAM and Ms A. I considered comments from the organisations and Ms A on my draft decision before I made this final decision.
7. I also considered the Ombudsmen’s Practitioner Guidance Note about s117 Aftercare.

Back to top

What I found

Background

8. In 2021 the Resident was detained under the Mental Health Act. Following their discharge in March 2022 under section 117 of the Mental Health Act the Resident moved into a supported accommodation placement run by Ms A. The Resident had assistance from a care coordinator at SLAM who helped arrange the placement.
9. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health and 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 for the person’s mental disorder under section 117 cannot be charged for.

Section 117 and accommodation

10. 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 the treatment for the mental disorder.

11. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and health organisations must follow it, unless there are good reasons not to. The Code says that section 117 aftercare can include accommodation and continues if the person needs these services.
12. Accommodation can generally only be part of section 117 aftercare if:

• the need is for enhanced specialised accommodation (“accommodation plus”); and
• the need for the accommodation arises from, or is related to, the reason the person was detained originally (“the original condition”).

13. Councils and ICBs have joint responsibility for commissioning and funding section 117 aftercare.
14. The Resident’s section 117 aftercare plan stated they require ongoing support from placement staff to successfully manage most aspects of daily living.
15. Ms A, with the assistance of SLAM, put together a care plan which included costs of the placement. The Council then agreed these costs at a panel it held.

16. Ms A has said in the original care plan she had included a figure (£400 to £500) set aside for weekly rent at the Placement. However, she said the Council told her that it would not fund this aspect of the plan.
17. Ms A said the Council and SLAM told her the Resident could apply for housing benefit to fund the accommodation costs.
18. Ms A then pursued a Second Council and the housing benefit route. Both routes were unsuccessful, so she approached the Ombudsmen.
19. The Second Council said the Resident was under the care of Croydon Recovery and Rehabilitation. It also said the Resident have been placed in its area under section 117 arrangements, with Croydon Council assuming full responsibility for the funding of the placement.
20. The Council has responded to the Ombudsmen’s enquires and said that once funding for a placement is agreed by a panel (the Panel) then residents should not claim for housing benefit as this would essentially be double funding.
21. However SLAM has said in email correspondence with Lewisham Council:

“there is an expectation …to claim housing benefit as this is supported accommodation;”

Analysis

22. There is no dispute that Resident’s accommodation is part of their s117 aftercare plan.
23. According to the Resident’s costings in the first care plan, supplied to us by Ms A, there was originally an amount set aside for accommodation.
24. On the balance of probabilities, I believe Ms A’s account that she was told to take the accommodation costs out of the plan. She would not have taken them out herself without any outside input into the decision as it would have led to a financial shortfall for her. The email evidence also shows that a SLAM staff member was pursuing a housing benefit claim with the second council and considered that housing benefit was meant to fund the accommodation costs.
25. I have not found sufficient evidence the Council told Ms A to remove the accommodation costs from the care plan. However, SLAM was working on behalf in this matter and there is evidence it advised Ms A to pursue housing benefits.
26. It was fault that SLAM advised Ms A to remove the part of the care plan that dealt with accommodation costs and told her to pursue housing benefit to make up the shortfall. SLAM was acting on behalf of the Council and ICB during this process as the Council and ICB are jointly responsible for section 117 procedures.
27. This fault then led to the accommodation costs being taken off the revised care plan with Ms A being given the mistaken belief she could recoup these costs in housing benefits.
28. The Council then agreed, at its Panel, to these erroneous figures.
29. Neither the Council, ICB nor SLAM should be asking the Resident to pay or apply for housing benefit for accommodation which is part of their section 117 aftercare. The Council and ICB should have paid for the accommodation costs from March 2022 onwards and these costs should have been included in the costings agreed by the Panel.
30. This fault by SLAM on behalf of the ICB and Council under section 117 procedures has left Ms A with a financial shortfall of several thousand pounds.
31. In addition, the Ombudsmen, as recently as 2021, upheld a complaint against SLAM and the ICB for encouraging service users who were under section 117 and had accommodation included as part of their aftercare plan to apply for housing benefits. We made recommendations in that previous complaint to end this practice.
32. However, even after our previous decision and recommendations which were accepted, SLAM still advised a service user to claim housing benefits for accommodation that should be funded by the Council and ICB. This is a repeated fault on the part of this organisation and has been noted by the Ombudsmen for future reference.

Back to top

Recommendations

33. The fault by all of the organisations has led to a financial shortfall for Ms A. I recommend by 29 August 2023:

• The Council and ICB write to Ms A apologising for the financial shortfall she has suffered due the faults in its funding practices,
• SLAM write to Ms A apologising for the inconvenience caused by wrongly advising Ms A to pursue housing benefit,
• The Council, ICB and SLAM agree a refund of the accommodation fees plus interest at the retail price index rate for the period March 2022 to the present.
• The Council and ICB should arrange for a fresh consideration of the Resident’s aftercare plan at the Funding Panel, ensuring the care plan submitted to the Panel includes the correct information about accommodation charges.

34. The evidence shows that the organisations involved have not ensured all staff understand where accommodation is provided as part of a s117 aftercare plan, that accommodation should be funded by the organisations and not through a housing benefit claim.
35. The Council, ICB and SLAM have now written to the Ombudsmen to outline the appropriate steps they have taken ensure staff are aware of this requirement. They should provide this information to Ms A.
36. The organisations should provide us with evidence they have complied with the above actions.

Back to top

Final decision

37. I uphold this complaint as I found fault with the organisations in relation to accommodation costs.

Investigator’s decision on behalf of the Ombudsmen

Back to top

Investigator's decision on behalf of the Ombudsman