Summary: We found no fault by the Council and Integrated Care Board in terms of the Section 117 aftercare they provided to Mrs Y. However, we found the Council, Trust and ICB delayed significantly in carrying out a Section 117 review. They will apologise and pay Mr X a financial remedy in recognition of the distress and frustration this caused. The Council, Trust and ICB will also review their policies and procedures to prevent similar problems occurring in future.

The complaint

1. The complainant, who I will call Mr X, is complaining about the care and treatment provided to his mother, Mrs Y, by West Sussex County Council (Council A), NHS Sussex Integrated Care Board and Sussex Partnership NHS Foundation Trust (Trust A).
2. Mr X complains that these organisations:

• failed to provide his mother with the aftercare services she was entitled to under Section 117 of the Mental Health Act 1983;
• delayed in arranging a timely Section 117 aftercare review for his mother;
• failed to provide him with appropriate support as his mother’s carer; and
• based their decision that his mother’s needs related primarily to her dementia on inaccurate and incomplete information.

3. Mr X says these failings caused Mrs Y significant distress as she was ultimately forced to move into a nursing home. He says Mrs Y has been required to pay fees for a care home when her needs relate primarily to her mental health and should be included in her Section 117 aftercare provision. Mr X says this situation has also caused him distress and inconvenience.

Back to top

What I have investigated

4. I have investigated the actions of Council A, Trust A and the ICB in relation to Mrs Y’s Section 117 aftercare. I refer in this decision statement to other local authorities and mental health Trusts. However, this is for context and background only. These organisations were not subject to my investigation, and I have not commented on the standard of care they provided.

Back to top

The Ombudsmen’s role and powers

5. 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).
6. 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.
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)

Back to top

How I considered this complaint

8. In making my final decision, I considered information provided by Mr X and discussed the complaint with him. I also considered information and relevant documentation provided by Council A, Trust A and the ICB. In addition, I took account of relevant legislation and guidance.
9. I also considered comments from all parties on my draft decision statement.

Back to top

What I found

Relevant legislation and guidance

Integrated Care Boards

10. On 1 July 2022, NHS England introduced the integrated care system. This involved the formation of local NHS partnerships responsible for producing an integrated care strategy on how to meet the health and wellbeing needs of the population in that area.
11. As part of the integrated care system, NHS England also introduced Integrated Care Boards. These organisations are responsible for managing the local NHS budget and arranging for the provision of health services in the area. The establishment of Integrated Care Boards resulted in the closure of clinical commissioning groups.
12. West Sussex Clinical Commissioning Group shared the statutory duty to provide or arrange Section 117 aftercare services for Mrs Y. That organisation has now been replaced by Sussex Integrated Care Board (the ICB). The CCG’s duties and responsibilities in terms of Section 117 aftercare have now passed to the new ICB.
13. In this decision statement, for consistency and ease of reference, I have referred to the ICB throughout, rather than its predecessor organisation.

Mental Health Act 1983

14. Under the Mental Health Act 1983 (the 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’.
15. Detention under Section 3 of the MHA is for the purpose of providing treatment. This section empowers doctors to detain a patient for a maximum of six months. A Section 3 can be renewed for another six months.
16. Under Section 117 of the MHA, local authorities and Integrated Care Boards have a duty to provide or arrange free aftercare services for people who have been detained under certain qualifying sections of the MHA. This includes Section 3.
17. Section 117 aftercare services must meet a need arising from, or related to, that person’s mental condition. The aim of these aftercare services is reduce the risk of the person’s mental condition worsening and thereby reduce the risk of further hospital admissions.
18. Section 117 aftercare can incorporate a wide range of services, including (but not limited to):

• Medication administration;
• Social work;
• Domiciliary care;
• Psychiatric treatment;
• Residential accommodation; and
• Supported living or extra care housing.

19. A person’s eligibility for Section 117 aftercare should be reviewed within six weeks of their discharge from inpatient services. Eligibility should then be reviewed annually thereafter. The person’s allocated care coordinator is responsible for arranging the Section 117 reviews.

Carer’s assessments

20. Where somebody provides, or intends to provide, care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
21. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
22. An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances councils do not have to carry out an assessment.

Key facts

23. Mrs Y has a diagnosis of bipolar disorder. In 2007, Mrs Y was detained under Section 3 of the MHA. This meant she was entitled to free aftercare services on discharge under Section 117 of the MHA.
24. Council A and the ICB were responsible for providing, or arranging, those services. They commissioned Trust A to provide Mrs Y with mental health services while she was resident in the West Sussex area.
25. Council A paid £243 per week in direct payments to meet Mrs Y’s social care and Section 117 aftercare needs. This included funds for carers and respite provision.
26. In 2008, Trust A discharged Mrs Y from its secondary mental health services. Mr X says that neither he nor Mrs Y was informed of this.
27. In 2009, Mrs Y moved to a different area. Her GP referred her to the local mental health service (Trust B) in October 2009.
28. Mrs Y moved again later that year. She began to received support from the local mental health service in the new area (Trust C).
29. In June 2018, the Council completed a review of Mrs Y’s Section 117 aftercare needs. Officers from the local authority responsible for the area where Mrs Y now lived (Council B) and Trust C also attended. The review agreed Mrs Y’s mental health was more stable but that it was difficult to entirely separate her physical and mental health needs. Council B agreed to provide support to meet Mrs Y’s social care needs. Council A agreed a weekly Section 117 aftercare payment of £27.90 per week. Council A made these payments to Mr X, who was acting as Mrs Y’s carer.
30. In April 2019, Mrs Y moved again to a different area. Mrs Y was living with Mr X and his partner, who provided her with support.
31. In June 2019, the local authority responsible for this area (Council C) completed a Care Act assessment. This found Mrs Y had eligible social care needs. Council C provided Mrs Y with a direct payment to meet her assessed needs. Mrs Y also received input from local mental health services (Trust D).
32. That month, a mental health assessment found Mrs Y was also suffering from cognitive impairment due to dementia.
33. In July 2019, Council A arranged a Section 117 aftercare review. Officers from Council C and Trust D provided input. The review agreed Council A would continue to provide a direct payment to Mr X. Council C would continue to meet Mrs Y’s social care needs.
34. A Care Act Advocate visited Mrs Y in September 2019 to obtain her views. Mrs Y confirmed she was happy with her existing care arrangements.
35. In early December, Mr X advised the social worker from Council A that Mrs Y had been admitted to hospital for an assessment of her medical needs. Mr X said that he and his partner were finding it increasingly challenging to care for Mrs Y. He requested additional respite support to allow him a break from his caring responsibilities.
36. The social worker completed a review of Mrs Y’s care needs on 19 December. The Care Act advocate was also present. The social worker noted Mrs Y continued to need significant social care support from Council C due to her dementia. He found it was no longer possible to identify any specific needs arising from her bipolar illness. The social worker concluded Mrs Y’s direct payment should remain the same, subject to review.
37. The social worker shared his December 2019 review with Mr X in April 2020. He concluded Mrs Y had not shown any signs of bipolar illness since the review in July 2019. He recommended Council A work with Trust D with a view to discharging Mrs Y from Section 117 aftercare services.
38. Mr X disputed these conclusions on 2 April. He said Mrs Y’s dementia diagnosis had not replaced her bipolar illness and that there was a complex relationship between the conditions. Mr X said Mrs Y was not receiving sufficient support to meet the needs arising from her mental health condition.
39. In October 2020, a social worker from Council A contacted Mr X to arrange a Section 117 review. However, a dispute developed as to whether Trust A or Trust D should be involved in the review.
40. In July 2021, Mrs Y moved into a nursing home. A social worker from Council A notified Mr X that Mrs Y’s Section 117 aftercare funding would be stopped.
41. The Section 117 aftercare review meeting for Mrs Y eventually took place in May 2022. This was attended by Mr X and representatives from Council A and Trust A. The review concluded that Mrs Y should be discharged from Section 117 aftercare services as her needs now related to her dementia and increasing physical frailty.

Analysis

Failure to provide Section 117 aftercare

42. Mr X complained that, despite being entitled to Section 117 aftercare services, Mrs Y was expected to contribute towards her care home fees. Mr X said Mrs Y’s bipolar disorder diagnosis remained a significant part of her presentation and that the fees should, at least in part, have been paid from Mrs Y’s Section 117 entitlement. Mr X said Council A failed to work with Council C and Trust D to ensure Mrs Y had appropriate support in place.
43. Section 33.7 of the Code of Practice says that local authorities and ICBs should maintain a record of people for whom they provide or commission aftercare services and what services are provided.
44. Section 33.15 of the Code of Practice makes clear that a patient’s aftercare plan should reflect the full range of needs for that patient. This should include a clear record of the person’s Section 117 aftercare needs and how these will be met.
45. The records show Council A completed a Section 117 review for Mrs Y in June 2018, with input from Council B and Trust C. The review noted that Council A was providing Mrs Y with a direct payment to meet her eligible Section 117 aftercare needs. This arrangement had been in place since Mrs Y’s discharge from hospital in 2007. The review noted Mrs Y had been using the direct payments to pay Mr X as a carer or personal assistant. This was to support Mrs Y with most activities of daily living.
46. As Mrs Y had by this point moved into the area of Council B, that local authority was responsible for meeting her social care needs. However, the duty to provide or arrange Section 117 aftercare remained with Council A and the ICB.
47. The review sought to clarify Mrs Y’s Section 117 aftercare needs. It noted Mrs Y suffered periods of mental ill-health “roughly on an annual basis” that could last up to six weeks. The review noted that these periods of mental ill-health could have an impact on other aspects of Mrs Y’s care. For example, Mrs Y may be at greater risk of self-neglect during these periods and less likely to take her medication as prescribed. The review concluded that Council A would provide a percentage of Mrs Y’s overall care budget as Section 117 aftercare. This amounted to six weeks of care per year (12% of the total care budget or £27.90 per week). Council A paid this to Mr X to support Mrs Y.
48. Council A completed a further review in July 2019, with input from Council C and Trust D. This noted that Mrs Y’s “mental health has improved and although there remains some fluctuation in [Mrs Y’s] mood, the presentation of both positive and negative symptoms are less severe.” The review found that “due to many of [Mrs Y’s] needs arising from age-related conditions and an apparently increasing cognitive impairment, it is increasingly difficult to distinguish between needs that ought to be addressed under S.117…and needs that ought to be addressed under the Care Act 2014.” The review concluded that Council A should continue to pay the direct payment pending a multi-agency review meeting.
49. In December 2019, the Council A social worker completed another review. This incorporated information from Trust D. Mr X told the social worker he would need additional funding from Council A to support Mrs Y. Mr X said he and his partner needed additional time away from their caring responsibilities as Mrs Y’s needs were now greater, particularly during the night. The social worker noted that Mrs Y had deteriorated physically and mentally due to her age and dementia diagnosis. He concluded “[t]his deterioration is so significant that it is no longer possible to identify any needs arising as a result of [Mrs Y’s] diagnosis of Bipolar Disorder.” The social worker again recommended that the direct payments remain at the same level pending further review.
50. There was a significant delay before another review was undertaken in May 2022. I have commented further on this delay below.
51. The review in May 2022 involved professionals from Council A, Trust A and the care home in which Mrs Y was then resident. Mrs Y was supported by Mr X and an independent advocate. The review acknowledged Mr X’s view that it was difficult to distinguish between Mrs Y’s dementia symptoms and those related to her bipolar disorder. However, the review concluded that Mrs Y had been admitted to the care home because of her dementia diagnosis. The review noted from Mrs Y’s clinical records that she had not experienced any overt depressive or manic episodes since 2015. Furthermore, the review found Mrs Y was no longer taking antipsychotic medication. The review concluded that Mrs Y should be discharged from Section 117 aftercare services.
52. The evidence I have seen shows Council A arranged four Section 117 reviews for Mrs Y between 2018 and 2022. None of the reviews identified accommodation as a Section 117 aftercare need related to Mrs Y’s bipolar disorder. I acknowledge Mr X’s view that it was difficult to separate Mrs Y’s dementia and bipolar needs. Nevertheless, by the time Mrs Y moved into the care home in July 2021, there appears to have been a clear consensus among the professionals supporting her that her primary care needs were related to her dementia and age-related frailty. This view was based on in-person reviews by officers from Council A, as well as clinical input from Trusts A, C and D.
53. Throughout the period June 2018 and May 2022, Mrs Y remained in receipt of a weekly direct payment of £27.90. This was to allow Mr X to support Mrs Y during periods of mental ill-health. As Mrs Y’s care needs began to increase, she received additional social care support from Council C, before moving into the care home in July 2021.
54. I am satisfied Mrs Y was in receipt of appropriate Section 117 aftercare services. I found no fault by Council A and the ICB in this regard.

Delayed Section 117 review

55. Mr X complained that Mrs Y was due to have a Section 117 aftercare review in June 2020. However, he said there was a delay of over a year arranging this.
56. A person’s Section 117 aftercare needs should be subject to regular review. The exact timescale for review will be determined by the extent of the person’s needs. However, the responsible local authority and ICB should ensure that a review takes place at least once per year.
57. The case records reveal significant confusion as to which agencies should be involved in Mrs Y’s Section 117 review. Trust D refused to participate on the basis that Mrs Y had been under the care of Trust A when she was detained in 2007. However, Trust A was reluctant to take part as it had not provided Mrs Y with care since her discharge in 2009.
58. The Mental Health Act Code of Practice (the Code of Practice) is clear regarding where the statutory duty for providing or arranging Section 117 lies. Chapter 33.1 of the Code of Practice explains that “Section 117 of the Act requires clinical commissioning groups [now Integrated Care Boards] and local authorities, in cooperation with voluntary agencies, to provide or arrange for the provision of aftercare to particular patients detained in hospital for treatment who then cease to be detained.”
59. Mrs Y was eligible for Section 117 aftercare services as she had been detained under Section 3 of the Act. As set out by the Code of Practice, the statutory duty to provide or arrange these services rested with Council A and the ICB.
60. Where a Council and ICB identify that an eligible person has mental health needs that must be met as part of their Section 117 aftercare, an ICB and/or local authority will ordinarily commission a local mental health Trust to provide these services. The ICB and local authority cannot delegate the statutory Section 117 duty to a mental health Trust.
61. Trust A had been providing Mrs Y with mental healthcare at the time of her sectioning in 2007. However, Trust A discharged Mrs Y from its secondary mental health services in 2008. It is unclear why Trust A agreed to become involved in the review of May 2022 given it had no legal duty to do so and had not been involved in Mrs Y’s care for over ten years by that point.
62. Ordinarily, the mental health service most recently providing care to a person (in this case Trust D) will be involved in a Section 117 review. This is because that service will have the most up-to-date knowledge of the person’s diagnoses and presentation.
63. It is of concern that there was such confusion around where the Section 117 duty lay in this case. Council A, Trust A and the ICB should all have been familiar with the requirements of the Act and the accompanying Code of Practice. The case evidence suggests this was not the case. This was fault.
64. The failure to clarify where the Section 117 duty lay resulted in a significant delay in arranging the review. This did not ultimately take place until May 2022, over two years after the previous review in December 2019.
65. I accept some other factors contributed to the delay. For example, Council A’s records show it was required to reallocate Mrs Y’s case several times during this period. The case records also show that Mr X also contributed to the delay as he refused several of the potential review dates offered by Council A. Nevertheless, the evidence shows that most of the delay was attributable to confusion around where the Section 117 duty lay.
66. I am satisfied the delay did not have a significant impact on Mrs Y’s care as she remained in receipt of a direct payment to meet her Section 117 aftercare needs throughout this period. However, it caused Mr X avoidable frustration and distress.

Carer support

67. Mr X complained that the Council failed to support him when he was acting as Mrs Y’s carer following her move to live with him in 2019. Mr X said this placed additional pressure on him and his partner as Mrs Y’s behaviour continued to deteriorate.
68. The case records show Mr X did raise concerns about the impact on him of his role as Mrs Y’s carer. Mr X discussed this with the Council A social worker as part of the review in December 2019.
69. Local authorities have a statutory duty to complete a carer’s assessment for any carer when it appears they may have a need for support. This duty rests with the local authority in which the cared-for person lives. Mrs Y was resident in Council C’s area. It was Council C, therefore, rather than Council A that was responsible for completing a carer’s assessment for Mr X. I found no fault by Council A on this point.
70. I should be clear that I did not investigate the actions of Council C and cannot comment on the support it provided to Mr X as Mrs Y’s carer. However, Council A’s records suggest Mr X was aware he could request a carer’s assessment from Council C.

Dementia diagnosis

71. Mr X complained that Council A, Trust A and the ICB based their view that Mrs Y’s dementia was her primary diagnosis on inaccurate and incomplete information. Specifically, Mr X referred to information provided by Council C, which suggested Mrs Y was effectively bed-bound and vegetative. Mr X said this was incorrect and that Mrs Y’s behaviours remained problematic.
72. My understanding is that Mr X is referring to an entry in Council A’s records in June 2021 in which a social worker from Council A described her conversation with a social worker from Council C. She noted that the social worker “stated that [Mrs Y] does not present with any challenging behaviour…She is now mainly bedbound, has no real communication and requires full nursing care.”
73. It is clear that, by the time of Mrs Y’s admission to the care home, the prevailing view among the professionals supporting her was that her care needs were largely due to her dementia and general frailty. However, it is important to be clear that no final decision had been made at that stage and Mrs Y was still receiving free Section 117 aftercare.
74. Mrs Y’s diagnosis was considered in detail as part of the review in May 2022. A clinical psychiatrist from Trust A concluded that Mrs Y’s symptoms (such as agitation, anxiety and aggression) were likely symptoms of her dementia. While I appreciate Mr X does not agree with this conclusion, I am satisfied Council A, Trust A and the ICB considered appropriate evidence in reaching it. I find no fault by these organisations on this point.
75. While I note Mr X’s concerns about the comments of the social worker from Council C, I am satisfied these did not carry undue weight when considering Mrs Y’s care needs. This is because representatives from Mrs Y’s care home were present at the review in May 2022 and were able to give a more complete picture of her day-to-day care needs.

Back to top

Agreed actions

76. Within one month of my final decision statement, Council A, Trust A and the ICB will:

• write to Mr X to apologise for their shared failure to arrange a timely Section 117 aftercare review for Mrs Y; and
• each pay Mr X £100 in recognition of the frustration and distress this caused him.

77. Within three months of my final decision statement, Council A, Trust A and the ICB will:

• review their Section 117 policies and procedures to ensure these are compliant with the Mental Health Act 1983 and the accompanying Code of Practice. Specifically, this review should ensure the revised policies and procedures provide clear guidance for staff on where the statutory duty for arranging and providing Section 117 aftercare lies. Council A, Trust A and the ICB should consult with each other as part of this review to ensure their revised policies and procedures are clear and consistent.
• Council A, Trust A and the ICB will write to the Ombudsmen with the outcome of this review and provide copies of the revised policies and procedures.

Back to top

Final decision

78. I found no fault by Council A, Trust A and the ICB in terms of the Section 117 aftercare they provided to Mrs Y. However, I found they were responsible for significantly delaying a Section 117 aftercare review meeting for her. This was fault.
79. In my view, the actions the Council, Trust and ICB have agreed to undertake represent a reasonable and proportionate remedy for the injustice caused to Mr X by this fault.
80. I have now completed my investigation on this basis.

Back to top

Investigator's decision on behalf of the Ombudsman