Summary: Ms X complained about Oxfordshire County Council, Oxford Health NHS Foundation Trust, and NHS Buckinghamshire, Oxfordshire and Berkshire West Integrated Care Board. She complained about faults relating to aftercare under section 117 of the Mental Health Act 1983. We have upheld Ms X’s complaints about discharge, assessment, care planning and personal health budgets. We did not uphold the rest of Ms X’s complaints. The organisations have accepted our recommendations, so we have completed our investigation.

The complaint

1. Ms X complained about the actions of Oxfordshire County Council (the Council), Oxford Health NHS Foundation Trust (the Trust) and NHS Buckinghamshire, Oxfordshire and Berkshire West Integrated Care Board (the ICB). Ms X complained about the following matters.
1. Ms X considered the way the organisations ended her eligibility for free aftercare under section 117 of the Mental Health Act 1983 in 2010 was flawed.
2. Ms X said the Trust offered inadequate back payments in response to her complaint about the flawed discharge. The Trust offered back payments for cleaning costs to 2019. Ms X considers the payments should cover other costs and should go back to March 2003.
3. Ms X said the Council carried out a flawed assessment for section 117 aftercare in 2022. She said the assessment contained errors and did not consider all her health needs. She disagreed with the decision about the level of support she needed under section 117 aftercare.
4. Ms X said she did not receive a section 117 aftercare plan following the 2022 section 117 aftercare assessment.
5. Ms X said the direct payments the organisations agreed she should get for section 117 aftercare do not meet the cost of the cleaning/personal assistant (PA) service she needs as section 117 aftercare. Ms X said she received £60 a week for home help, which was less than the assessed cost of the service in 2014, despite inflation and her needs not changing.
6. Ms X also complained that her 2022 request for a personal health budget (PHB) for gym membership and yoga classes was refused. Ms X considered these, as well as talking therapy for 2019-2023, and dietary/fitness support since September 2023 should have been included in her section 117 aftercare and she should have received a PHB for them.
7. Ms X also complained about delays and flaws in the organisations’ complaints processes.
2. Ms X said she suffered the following injustice because of the problems she complained about:
• financial hardship because of having to pay for services and support that should have been free and inadequate direct payments;
• her current section 117 aftercare does not meet her needs in full because it does not meet her needs for gym membership, yoga classes and support with dietary needs;
• she does not have a copy of her current section 117 aftercare plan;
• frustration and upset because of the flawed complaints handling; and
• increased difficulty in coping with her caring role for her brother.
3. Ms X wanted the following outcomes to resolve her complaint:
• an increased back payment;
• an increase in the current budget for her home help to reflect the price she actually pays (£80 for four hours of home help a week); and
• a personal health budget to include payments for home help, gym membership, yoga classes and dietary/exercise support.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
7. 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.
8. We cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant responsible body has to make. Therefore, my investigation has focused on the way the bodies made their decisions.
9. We 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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
10. When investigating complaints, if there is a conflict of evidence, we 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. 
11. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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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What I have and have not investigated

12. Although some of the events Ms X complains of happened between 2010 and 2019, she did not become aware of the potential faults in what happened until between 2019 and 2022. She complained to us in May 2023. This means that complaints about any issues that happened before May 2022 are ‘late’ as Ms X was aware of them for more than 12 months before complaining to us.
13. I have decided it is reasonable for me to investigate the complaints as set out in 1a-1g above. This is because:
• Ms X complained to the Trust in early 2020, in good time after becoming aware of the issue in 2019;
• there were good reasons why she did not complain to us before 2023;
• despite the time that had passed, there was a realistic prospect of a robust and fair investigation.
14. The end point of my investigation is May 2023, when Ms X complained to the Ombudsmen.

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How I considered this complaint

15. I have considered:
• the information Ms X has provided in writing, including copies of her records of interaction with the organisations and her expense records;
• the organisations’ responses to my enquiries, including copies of relevant records and policies; and
• relevant law and guidance.
16. Ms X and the organisations have had an opportunity to consider and comment on a draft version of this decision. I took their comments into account before reaching a final decision.

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What I found

Background

Section 117 aftercare

17. 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’. Detention under Section 3 of the Mental Health Act is for the purpose of providing treatment. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
18. 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).
19. 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 treatment for the mental disorder.
20. The Care Programme Approach (CPA) was relevant to some of the time frame of this complaint. The 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 (MDT). According to the Government’s Mental health Act 1983: Code of Practice (the Code), the CPA should apply to most people who are entitled to section 117 aftercare.

Organisational responsibilities

21. Under section 117 of the Mental Health Act 1983 the Council and ICB have a joint duty to provide or arrange free aftercare until they are satisfied the person no longer needs it. The ICB and the Council commission the Trust to assess aftercare needs and arrange or provide aftercare services. Although the ICB and Council have an agreement with the Trust for the Trust to provide and coordinate aftercare services, they retain legal accountability for those services.
22. We have therefore investigated all three organisations when investigating this complaint.

Summary of key events

23. Ms X was detained in hospital under section 3 of the Mental Health Act 1983 in the early 2000s. Following discharge from section 3, she was entitled to free section 117 aftercare.
24. In 2010, the organisations discharged her from section 117 aftercare.
25. Ms X found out about this in 2019 and pursued complaints through the Trust’s complaints process.
26. The Trust’s complaints process concluded there was fault in Ms X’s discharge from section 117 aftercare and offered her a financial remedy backdated to 2019, when she first became aware of the problem. Ms X considers this does not fully remedy her injustice. She also considers her most recent section 117 needs assessment is flawed and that the support she has been receiving is inadequate.

A – Ending free aftercare

27. The "Mental Health Act 1983: Code of Practice" (the Code) is statutory guidance. This means that councils and ICBs must follow it, unless there are good reasons not to. The Code says that:
• councils and ICBs should keep a record of the people for whom they provide section 117 aftercare services and what those services are;
• the duty to provide aftercare services exists until both the ICB and council are satisfied the person no longer needs them; and
• an unwillingness to accept aftercare services does not mean that patients have no need for them; and
• it is important to fully involve the patient in ending their aftercare.
28. The organisations have already accepted that there was fault in the way they ended Ms X’s entitlement to free section 117 aftercare in 2010. They have apologised for this and reinstated Ms X’s aftercare. I will therefore not make any further recommendations relating to this part of the complaint.

B – Back payments following 2020-2022 complaints

Key events

29. Having accepted that Ms X was incorrectly discharged from section 117 aftercare in 2010, in 2021 the Trust offered her a remedy of approximately £3,270, on the basis that:
• Ms X received direct payments for that amount between 2014 and December 2019 but was incorrectly required to pay contribution of about £290 for cleaning services in 2019 and 2020;
• Ms X should also have received £60 per week worth of help with cleaning as free section 117 aftercare between December 2019 and February 2021, equating to £3,720;
• the total amount should include an 8% “uplift”, increasing it to about £4,330; and
• Ms X had in the meantime received an overpayment of about £1,060 which should be taken from the amount the organisations owed if Ms X could not refund it to the Council.
30. Ms X disputed the amount and was not prepared to accept a financial settlement until the amount was resolved to her satisfaction. Ms X said that her need for home help (a combination of tidying and cleaning) was a section 117 aftercare need since she left hospital following a section 3 detention in 2002. She said she received help from her mother until March 2003, when she started paying for home help herself and she funded this help herself until 2015 when she started receiving direct payments. Ms X said the home help has therefore been a section 117 aftercare need for the entire time she has been out of hospital. She wanted the organisations to reimburse her for what she spent on this between 2003 and 2015.
31. Ms X also considered she should have had talking therapy, yoga classes and gym membership as free section 117 aftercare at different points in her care.
32. Ms X said she paid for these services privately and the organisations should reimburse her for this, plus interest. Ms X calculates her total expenses plus interest to February 2022 to be approximately £48,000.
33. The Trust replied to Ms X’s concerns in October 2022. It did not accept that the other services should have been part of her section 117 aftercare. In summary, it considered that:
• Ms X had received direct payments of £60 per week for cleaning between March 2014 and December 2019;
• during that period, Ms X had not raised concerns about this not meeting her needs adequately; that the budget was not enough to pay for the services, or that she had also been paying for other services;
• there was no evidence Ms X had told the organisations that she had been funding services before 2014 and the organisations’ care plan documents for this period did not suggest she had any unmet needs; and
• with regards to talking therapy provision, Ms X’s local NHS services would have referred her to psychological services had there been a clinical need for this.
34. By October 2022, the Trust calculated that the amount due to Ms X had risen to just over £10,500. It said it would settle this by sending her a cheque and would reinstate her direct payments that month if she could confirm how she would like to receive the payments.
35. The available CPA review documents contain the following relevant information.
• The August and October 2003 care plans said in the “unmet needs” section that Ms X “would like help with homecare” and that her community psychiatric nurse (CPN) would pursue this. Ms X disputes this and says CPN support was mainly with her mental health and not home management.
• The January 2005 care plan confirmed Ms X was eligible for section 117 aftercare. Her care plan included contact with community psychiatric services every two weeks. It did not include home help or cleaning. In the “unmet needs and comments” section, the plan said that Ms X “would like help with cleaning”. Ms X commented on the plan that she felt she needed more frequent one-to-one contact with services, preferably every week.
• Other 2005, 2006 and 2007 care plans were similar and stated Ms X said cleaning continued to be a problem.
• The February 2009 care plan mentions Ms X had a need for “enhanced independent living skills … to include cleaning flat”, done by Ms X, her PA and a voluntary organisation’s support service. This is the first Trust document mentioning cleaning being part of Ms X’s care plan. However, this was in the context of independent living skills rather than somebody tidying and/or cleaning her home for her.
36. Other health and care records provided by Ms X and the Trust, as well as a chronology from the Trust, contain the following relevant information.
• Extracts from clinical notes from 2004 refer to Ms X “asking for various needs met…cleaner…CPA, psychology” and later to her spending £30 a week on a cleaner.
• Extracts from clinical notes from 2005 refer to Ms X asking professionals for support with cleaning and later finding her own cleaner.
• In 2008, Ms X was referred to a voluntary organisation’s support service for help with practical issues, including learning strategies to maintain and clean her home.
• A complex needs service assessment form from April 2009 refers to Ms X having difficulties tidying up after herself and a disagreement with the community mental health team (CMHT) when she wanted a CMHT worker to tidy her flat. Ms X disagreed with this assessment.
• A record of a March 2013 appointment with a psychiatrist says that Ms X was under the care of a community support service “to help with managing her flat”. A record of a meeting in August 2013 notes that Ms X wanted a cleaner and could not afford to keep paying for one herself. The record notes a recommendation to look at other services via the existing support team and to give Ms X information about social care eligibility. Ms X had a social care needs assessment in October 2013 which noted her main issues related to cleaning and organisation. There is no record of the outcome of this assessment. However, it appears eventually to have resulted in an application for direct payments.
• The Trust approved an “application for SDS” (self-directed support) in March 2014 with an “indicative budget” of £78. This appears to have been the basis for a Council social care support plan which included direct payments of £60 per week.
• In June 2016, Ms X asked her social worker for an increase in her direct payments so she could use an agency instead of a PA. Ms X emailed the Trust to ask for a larger amount in March 2017. Her reasoning was that the cost of a support worker from an agency was £68.25 for 3.5 hours a week, and her direct payments were only £60 a week.
• A mental health care plan from October 2017 says that Ms X “receives a social care package to provide her with PA support around managing, tidying and cleaning her otherwise dirty and chaotic flat”. Another document saying it was reviewing Ms X’s care package in July 2019 repeats this statement.
• A letter from Ms X’s GP dated December 2019 says that Ms X was seeing a private psychologist even though this stretched her financially because she did not meet the criteria for the two local NHS services. Her GP was supportive of Ms X having access to a psychologist.
• A December 2021 Council support plan document says Ms X has had an indicative budget of £60 and direct payments of £60 from 1 April 2015.
• A January 2023 Council support plan document says Ms X has “unmet” and “eligible” needs for support in maintaining a habitable home environment and managing nutrition. It goes on to say that it has agreed a personal budget of £60 a week provided via direct payments. This was so Ms X’s cleaner could continue to support her to maintain a habitable home environment with three hours per week of help. The document also says Ms X is eligible for section 117 aftercare.

Was there fault causing injustice?

37. The available evidence shows:
• Ms X has been eligible for section 117 aftercare since the early 2000s;
• Ms X was paying for cleaners or home help before 2015 and this has cost her more than £60 a week for some time;
• over several years, Ms X told the Trust and later the Council that she wanted help with tidying and cleaning, in the form of financial support so she could pay a cleaner or home helper. More recently, Ms X has been explicit with the organisations that she considers she needs a home helper or personal assistant rather than a cleaner, in order to help tidy, declutter and organise her home rather than just cleaning it;
• the Council decided in 2014 that Ms X should receive a direct payment to help her pay for cleaning support because it considered she had a social care need for this. Under the Care Act 2014 and predecessor legislation, councils can ask for financial contributions to social care, subject to a financial assessment;
• Ms X received this support with no financial contribution required from her from 2014 until 2019, when the Council asked her to contribute financially. The Council suspended this support in 2019 after she refused to do so;
• having considered her complaints between 2020 and 2022, the Trust (acting on behalf of the Council and ICB) decided that cleaning should have been provided free of charge under section 117 of the Mental Health Act 1983 rather than as potentially chargeable social care support;
• at various points since 2004, Ms X has told the Trust she wanted psychological help;
• the Trust was aware of Ms X having an eating disorder and of her finding exercise beneficial; and
• Ms X has privately funded talking therapy between 2020 and 2023.
38. However, this does not necessarily mean that the support with cleaning and the other support Ms X asked for should have been provided as free section 117 support from 2003 or at any point before 2014.
39. To qualify as 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 treatment for the mental disorder.
40. Ms X considers that her needs for a home help arise from and are related to her mental disorder. However, none of the available evidence indicates the health and social care professionals seeing her before 2014 considered she needed a cleaner/ home helper:
• as a result of or related to the mental health condition that led to her original hospital detention; and
• to reduce the risk of that mental health condition worsening and Ms X needing to return to hospital for treatment.
41. Therefore, there was no fault in the organisations’ decision not to backdate the remedy for cleaning/home help expenses to before 2019.
42. The evidence also indicates that:
• there were periods when Ms X received support with nutrition, exercise and mental health through services the Trust either provided directly, or referred her to;
• there were also periods when Ms X referred herself for NHS psychological support services;
• the relevant professionals were aware when Ms X had privately funded exercise, diet and talking therapy services but did not consider these were section 117 aftercare needs in terms of being related to her original detention and reducing the risk of being re-detained in hospital. The relevant professionals were entitled to their professional opinions, even though they differ from Ms X’s views.
43. Therefore, there was no fault in the organisations’ decision not to include the costs of these services in the remedy payment.

C and D – 2021/22 section 117 aftercare assessment and lack of section 117 aftercare plan

44. Ms X says the Council carried out a flawed assessment for section 117 aftercare in 2022. She says the assessment contains errors and does not consider all her health needs. She disagrees with the decision about the level of support she needs under section 117 aftercare. She says she has not received a copy of the aftercare plan.
45. The Mental Health Act 1983: Code of Practice (the Code) says:
• a person’s aftercare needs should be fully assessed, discussed with the person, and addressed in their care plan;
• to ensure the aftercare plan reflects the full range of the person’s needs, it is important to consider who other than the patient needs to be involved in the assessment, including (subject to the person’s consent) carers and medical professionals; and
• aftercare should be planned within the framework of the CPA.
46. The Code says care planning requires a thorough assessment and is likely to involve consideration of:
• continuing mental and physical healthcare;
• psychological needs;
• daytime activities or employment;
• accommodation;
• risks and safety;
• any specific needs arising from co-existing disabilities;
• caring needs;
• social, cultural or spiritual needs;
• counselling and personal support; and
• help with welfare rights and managing finances.
47. The Code also says the CPA care plan should be recorded in writing and a copy given to the person. It says the plan should include:
• a treatment plan detailing medical and therapeutic support including any support to address physical health problems;
• details of how the person will be supported to achieve their personal goals;
• social needs support details; and
• actions in the event of a deterioration or crisis.

What happened?

48. Ms X did not have a section 117 aftercare plan when the Trust upheld her complaint in 2020 and offered to assess her section 117 aftercare needs. Therefore, the Trust should have taken the steps set out in the Code to carry out a fresh assessment on behalf of the Council and ICB. In December 2021, the Trust had conversations with Ms X, who was supported by an advocate, to help it assess her section 117 aftercare needs. The Trust recorded its assessment on a proforma document which is generated by the Council’s adult social care computer system. The system generates one standard from which is formatted primarily for assessing social care support needs under the Care Act 2014. However, the form has the following sections which mention aftercare under section 117 of the Mental Health Act 1983:
• is the person entitled to Section 11 aftercare;
• section 117 start date;
• presenting concerns leading to admission in hospital;
• psychiatric medications;
• mental capacity regarding aftercare entitlements; and
• other important information explaining the person’s section 117 needs.
49. The assessment form also contains fields for the following, which could be related to section 117 aftercare or support under the Care Act 2014:
• how mental well-being affects the person or other people;
• health needs and medication;
• risks; and
• diagnosis.
50. However, the assessment form does not prompt the assessor to consider or record their consideration of whether the person needs aftercare (and if so, of what type) to:
• 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 treatment for the mental disorder.
51. The Trust has provided copies of email correspondence with Ms X which show that:
• Ms X saw and commented on versions of the assessment document in late 2021 and early 2022; and
• the Trust incorporated some of the amendments Ms X proposed but by March 2022 had refused to amend the assessment document further.
52. Based on the records provided by the Trust, it finished assessing Ms X’s section 117 aftercare needs in March 2022 and produced a section 117 aftercare plan in March 2023.
53. In response to our enquiries, the Trust told us that it did not share the section 117 aftercare plan with Ms X as Ms X remains of the view that the assessment was flawed.

Was there fault causing injustice?

54. The Code says organisations should use the CPA framework to assess and plan section 117 aftercare, but they do not have to do so. This means the Trust, acting on behalf of the Council and ICB, was entitled to use an alternative framework in Ms X’s case. However, whichever framework the Trust used, it should have considered the points set out in paragraphs 19, 20, 46 and 47 above, or explained at the time why they did not apply in Ms X’s case.
55. The Trust’s assessment document noted Ms X had been detained in hospital in the past due to a mental disorder which was ongoing and caused her difficulties with initiating and doing activities including tidying and cleaning. The document also recorded other support and activities that Ms X found helpful. These included both social care and mental health support. However, with the exception of acupuncture, the document did not:
• clarify whether these met support needs under the Care Act 2014, or section 117 of the Mental Health Act 1983, or neither and why; or
• expressly state which services, if any, met a need arising from Ms X’s mental disorder and had the purpose of reducing the risk of Ms X’s returning to hospital for treatment of the same disorder.
56. The assessment document also discussed Ms X’s needs and eligibility for services in language that applies to social care support under the Care Act 2014 and associated Regulations, but not to aftercare needs and services under the Mental Health Act 1983. For example, the assessment document referred to:
• “eligible” and “non-eligible” needs;
• needs arising from or being related to a physical or mental condition or illness;
• the “specified outcomes” set out in The Care and Support (Eligibility Criteria) Regulations 2015.
57. Although very detailed, the assessment record does not make it clear why support with cleaning qualifies as section 117 aftercare for Ms X, and (with the exception of acupuncture) why the other services she wants do not. This lack of clarity and specificity in the section 117 aftercare needs assessment record is fault. The standard form, which is linked to the Council’s adult social care computer records and uses prompts aligned to the Care Act 2014, appears to have contributed to the confusion.
58. Regardless of Ms X’s disagreement with the aftercare plan, the organisations should have shared this document with her. This is especially the case as Ms X continues to receive the support in the aftercare plan, which is a weekly payment towards her home help costs. Failure to share the care plan was contrary to the Code and fault.
59. Because of the faults set out above, we cannot say, even on balance of probability, whether the 2021/22/23 assessment and care plan:
• accurately captured Ms X’s current section 117 aftercare needs; and
• properly identified the section 117 aftercare Ms X needs to reduce the risk of her returning to hospital for treatment of the same disorder that led to her original hospital detention.
60. This avoidable uncertainty is an injustice to Ms X. At the end of this decision statement, I have recommended a remedy for her and service improvements to prevent similar problems recurring.

E – Adequacy of current direct payments to meet actual cost of home help

61. Ms X says the direct payments the organisations have agreed she should get for section 117 aftercare do not meet the cost of the cleaning/personal assistant (PA) service she needs as section 117 aftercare. When Ms X complained to us, she was receiving £60 a week for cleaners. She complained this was less than the assessed cost of the service in 2014, despite inflation and her needs not changing. She also said that she needs a home help or personal assistant to declutter and organise her home, which is more help than a cleaner would provide and therefore more expensive.
62. What level of care is appropriate and adequate for any individual is a matter of professional judgement and a decision that the relevant organisation has to make. I have dealt with the adequacy of the aftercare needs assessment in section C&D above and recommended a fresh assessment as a remedy at the end of this statement. When considering this part of the complaint, I have focused on the way the Trust decided that £15 per hour, rising to £16.35 per hour, was an adequate hourly figure for cleaning. This is because cleaning for four hours a week is the support the Trust decided Ms X was entitled to at the time.
63. The evidence provided by Ms X and the Trust contains the following information relevant to this part of the complaint.
• In November 2014, the Council calculated an indicative budget of £78 per week for 4.5 hours of support a week.
• When the Council set up direct payments in April 2015, the actual amount Ms X received was £60 per week.
• In February 2017, Ms X was paying her then personal assistant £13 per hour.
• Ms X contacted the Trust in 2017 asking for an increase in her direct payments as she wanted to use an agency that charged just under £20 per hour. The Trust did not increase the payments. Ms X received £60 per week consistently prior to her support with cleaning ending in 2019.
64. I have therefore concluded that:
• Ms X wanted a higher direct payment in the past and the Council’s initial indicative weekly budget was higher in 2014 than in 2022; however,
• the Council’s actual direct payments to Ms X did not go above £60 a week.
65. When responding to our enquiries, the Trust gave us the following explanation of its reasoning for not increasing the hourly rate following its 2021/22 assessment.
• The 2022 section 117 aftercare needs assessment indicated Ms X should have a budget of £57.10 per week.
• The Trust then allocated Ms X £60 a week for four hours of cleaning. This was based on the average cost of a private cleaner in its area being £15 per hour.
• By 2024, the Trust had increased Ms X’s weekly payment to £65.40 to take account of inflation. This equates to £16.35 per hour.
66. I consider it reasonable for us to rely on the Trust having knowledge of the average rates for cleaning based on its experience of all the care packages it organises or funds via direct payments. I am satisfied the Trust has provided a sound explanation of:
• why £15 per hour was adequate following the 2021/22 assessment; and
• why the hourly rate is now £16.35 per hour rather than a higher amount.
67. I have therefore not found fault with this part of the complaint.
68. If Ms X wishes to challenge the type of support she is assessed as needing, which might in turn affect the amount of money allocated to her, she can do this as part of the fresh assessment I have recommended below.

F – PHB request

69. A Personal Health Budget (PHB) is an amount of money that an NHS organisation would normally spend providing or arranging someone’s care which the person can spend in a more flexible way to meet their identified need.
70. Since December 2019, people eligible for section 117 aftercare have had a legal right to request a PHB for the health elements of that aftercare. ICBs have legal duties to:
• ensure they have systems and processes in place to arrange for the provision of PHBs;
• publicise and promote the availability of PHBs;
• provide information, advice and support to help people to decide whether to request a PHB;
• consider individual requests for PHBs; and
• grant a request unless doing so would not be appropriate in the individual’s circumstances.
71. The relevant legislation and guidance are:
• The National Health Service (Direct Payments) Regulations 2013;
• The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2013;
• The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 3) Regulations 2014;
• The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 2) Regulations 2019; and
• "Guidance on the legal rights to have personal health budgets and personal wheelchair budgets", December 2019.
72. Only the ICB has the legal power to consider and approve or reject individual PHB requests. It cannot delegate this to the Trust or Council.
73. The Trust has told us that:
• Ms X asked the Trust to help her apply for a PHB in 2021;
• the Trust told her there was no mechanism for this in the area because section 117 aftercare comes from a ‘pooled’ Council and ICB budget which pays for these services; and
• the Trust did not confirm this information in writing.
74. The information the organisations have provided indicates the ICB is not complying with the relevant law and guidance because it does not have the following in place for PHBs for section 117 aftercare:
• publicity and promotion of PHB availability;
• information, and advice and support for people to help them decide whether to apply for a PHB; and
• systems and processes to consider individual requests and arrange for provision of PHBs.
75. This means that people in the ICB’s area cannot apply for a PHB for section 117 aftercare services despite having a legal right to do so. This is fault.
76. This has not caused Ms X a practical disadvantage while she is only entitled to help with cleaning because:
• help with cleaning is considered a social care element of her section 117 aftercare; and
• she receives a direct payment for this, which is the social care equivalent of a PHB.
77. However, the lack of clarity or written confirmation to Ms X has added to her uncertainty and her frustration with the matters she complains of. We have therefore recommended the ICB apologises to her and ensures she gets the relevant information about PHBs no later than her next section 117 aftercare review.
78. We are also concerned the ICB’s failure to comply with the relevant law and guidance could cause others an injustice. We have therefore recommended service improvements at the end of this decision statement.

G – Complaints process

79. Ms X says she was dissatisfied with the Trust’s final response to her complaint. She considers it was based on inaccurate claims, did not address her concerns fully and made unsuitable recommendations.
80. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
81. Regulations also say that organisations must:
• investigate complaints properly and appropriately;
• treat complainants with respect and courtesy;
• give complainants “appropriate” responses;
• share with complainants a written response explaining what they have considered and their conclusions; and
• if needed, take remedial action.

(Regs 3 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

82. The Trust dealt with Ms X’s complaints on behalf of the Council and ICB. The Trust’s complaints policy says the following things relevant to this part of Ms X’s complaint.
• The Trust grades complaints according to risk. It categorises complaints as green (lowest risk), yellow, orange and red (highest risk).
• The Trust will acknowledge all complaints within three days of receipt.
• The Trust will try to respond to all green and yellow graded complaints within 35 working days (seven weeks) and to all other complaints within 60 working days (12 weeks). It will agree the timescale for each complaint with the complainant.
• If it upholds the complaint or parts of it, the Trust will produce an action plan for improvements.
• Staff handling complaints should communicate with complainants openly and honestly.
• Where appropriate, the Trust should apologise, acknowledge mistakes and explain why they happened.
83. The Trust responded to Ms X’s initial complaint of March 2020 within its stated timescale of 35 working days. Ms X raised further concerns in November 2020. There were delays in the Trust’s acknowledgement and response and the Trust communicated about these to Ms X and her advocate. The Trust sent its response at the end of March 2021. Ms X raised further concerns in July 2022. There were more delays in the Trust’s acknowledgement and response to Ms X. Again, the Trust communicated about these with Ms X. The Trust sent its final response in October 2022.
84. While there were delays compared with the Trust’s policy, both the policy and the Regulations give the Trust flexibility on response timescales. Although Ms X’s complaint was ongoing in the sense that section 117 eligibility was at its core, the further concerns she raised in late 2020 and in 2022 added complexity and some new issues to the core complaint. The Trust therefore had a reason for delay and its communication about the delays at the times they were happening was adequate. I have therefore not found fault with the Trust for delay in the complaints process.
85. I have also reviewed the substance of the Trust’s complaint responses. In summary:
• the first response accepted that the organisations incorrectly discharged Ms X from section 117 aftercare in 2010, apologised for this and said the Trust needs to review Ms X’s section 117 aftercare needs. The Trust also offered to meet Ms X to discuss in detail the other concerns she raised;
• the second response noted the Trust had met with Ms X and her advocate and agreed to reinstate her section 117 aftercare, but it was important to do a fresh needs assessment. The Trust also confirmed its calculations of how much money it owed Ms X for support she paid for herself while the dispute was ongoing. It also apologised to Ms X for the inconvenience she had suffered;
• the third response replied to Ms X’s additional concerns including her dissatisfaction with the new section 117 aftercare assessment. It also gave a fresh calculation of the money it owed her at this point.
86. Ms X was clearly dissatisfied the Trust’s final response, as she complained to the Ombudsmen. She is particularly dissatisfied with the Trust’s reference to records from its psychological services from 2012, which she considers inaccurate, irrelevant and out of date.
87. The Trust was entitled to consider Ms X’s medical and social care records going back to the start of her section 117 aftercare entitlement, including what happened in 2012. This is because the remedy Ms X wanted included reimbursement for some services she had funded in the past. The Trust was therefore not at fault in considering Ms X’s past medical and social care history and taking its own view on this, even if Ms X disagreed with it.
88. Overall, I consider the Trust’s complaint responses are accurate accounts of the Trust's consideration of and decisions on Ms X’s complaints. Aside from not identifying the flaws in the section 117 assessment and care planning process (already addressed in section C & D above), I found no fault in the Council’s consideration of Ms X’s complaints.

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Agreed actions

89. All three organisations will send Ms X a meaningful written apology for the problems identified in this decision statement and their impact on Ms X. They will do this within a month of our final decision.
90. The organisations will take the following actions to remedy the injustice to Ms X from the faults identified in this decision statement.
• Within three months of our final decision, complete a fresh assessment of Ms X’s section 117 aftercare needs, produce an aftercare plan, share it with Ms X and give her the information she is entitled to regarding PHBs. The organisations are entitled to use their own forms and procedures for doing this, even if they differ from the Code’s recommendations. However, the assessment and care plan should cover all the key considerations set out in the Code. The assessment and care plan should also make clear which services are section 117 aftercare and why, as well as what is not provided under section 117 and why. If there are any delays to completing the assessment and care plan by the organisations or by Ms X, they should be mutually agreed between Ms X and the organisations.
• If not already paid to Ms X, the Trust should ensure it now pays her the reimbursement agreed as part of its local complaints process.
91. The organisations will provide us with evidence they have complied with the above actions.
92. The organisations have told us the Council is currently reviewing and improving its section 117 processes. This includes:
• updating the process for recording section 117 aftercare plans;
• developing and providing mandatory training on section 117 aftercare for relevant Council and Trust staff; and
• updating its computerised records system.
93. I have therefore not made further recommendations for service improvements around section 117 aftercare assessment and care planning. The Council will send the Ombudsmen and Ms X its action plan for these improvements within three months of our final decision.
94. The ICB will produce an action plan for reviewing its section 117 PHB process to ensure it complies with the relevant Regulations and guidance. This is to prevent the faults we have identified causing injustice to others or Ms X in the future. The ICB will send the Ombudsmen, Ms X and NHS England copies of the action plan within three months of our final decision.

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Final decision

95. I uphold Ms X’s complaints about section 117 aftercare assessment and care planning, and about personal health budgets. I do not uphold the rest of Ms X’s complaints. The organisations have accepted my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman