Summary: Mr X complained about a decision to refuse to class his daughter Ms D’s course as free aftercare under the Mental Health Act 1983. The Ombudsmen did not uphold the complaint. We found no fault in the actions of West Sussex County Council and NHS Sussex Integrated Care Board.

The complaint

1. Mr X complains on behalf of his adult daughter, Ms D. He complains about the refusal to treat Ms D’s educational course as free aftercare under section 117 of the Mental Health Act 1983 and fund it accordingly. Mr X considers the decision was flawed because West Sussex County Council (the Council) reached it without properly considering the relevant information. Although NHS Sussex Integrated Care Board (the ICB) was not directly involved in making the decision to refuse section 117 funding for the course, it cannot delegate its legal accountability for section 117 aftercare, so it has been included in our investigation.
2. Mr X says that as a result of the matters he complains of:
• he has had to pay £3,600 for the course which he and Ms D consider should have been funded by the Council and ICB as section 117 aftercare; and
• he and Ms D have experienced avoidable distress and uncertainty around Ms D’s section 117 aftercare.
3. As a result of our investigation, the complainants would like the following to happen.
• Meaningful apologies to Ms D and her family.
• Reimbursement of £3,600.
• Service improvements.

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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 may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(1) and 26A(2), as amended)
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. 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))
8. 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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How I considered this complaint

9. I have considered:
• information Mr X has provided in writing and by telephone;
• the Council’s and ICB’s responses to my enquiries. These include written responses to my questions as well as copies of records and relevant local policies; and
• relevant law and guidance.
10. Mr X, the Council and the ICB had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

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What I found

Relevant law, national guidance and local policy

11. Under the Mental Health Act 1983 (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’.
12. Section 117 of the MHA 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 MHA (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
13. 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.
14. 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 interpret the definition of section 117 aftercare services broadly, as long as they meet the criteria in paragraph 13 above.
15. The Council and ICB have an agreement with a local NHS Trust (NHS Trust Z) to which they have delegated responsibility for delivering section 117 aftercare health services. The Council and NHS Trust Z are responsible for assessing aftercare needs, recording this in an aftercare plan, and reviewing aftercare plans at least once a year. The Council and ICB have a pooled budget for funding the provision set out on a person’s section 117 aftercare plan. The ICB does not usually get involved in discussing individuals’ section 117 aftercare, unless the proposed aftercare meets a threshold for being discussed at a joint funding panel. The Council and ICB retain overall responsibility for ensuring people get the provision set out in their aftercare plans. All three organisations follow a common local practice guidance document called “S.117 Mental Health Act practice guidance (for adults)”.

What happened

Background summary

16. Ms D is a young adult who has been entitled to section 117 aftercare since February 2023. Her section 117 aftercare plan states the following needs will be met by the NHS and the Council.
• The NHS will review and support Ms D’s mental health and medication needs in the community.
• The Council will fund two hours a week of support for Ms D in setting and reaching identified goals in her parents’ home to prepare her for independent living in the future. The Council will also provide ongoing support to Ms D in the community in accessing activities, transport funding and housing options.
• The Council and NHS will complete joint annual reviews of Ms D’s section 117 aftercare needs.
17. Later in 2023, Ms D enrolled on a course which she hoped would be funded under a central Government scheme. However, in late August 2023 the course provider told Ms D that she was not eligible for the Government funding scheme because she had already completed a course under the same scheme.

Events relevant to this investigation

18. When the course provider confirmed Ms D was not eligible for Government funding, the Council’s education advice team told the provider and Ms D that Ms D could explore section 117 funding and suggested that health and social care investigate this.
19. In early September 2023, the Council’s education advice team asked NHS Trust Z if the course could be funded as section 117 aftercare. The Council’s education advice team said that from speaking to Ms D, “her motivation for choosing this particular course is to support her reengagement with learning, which in turn supports her journey to recovery”.
20. The following day, the Council’s mental health social work team responded to say section 117 aftercare can sometimes include education, where:
• there is an assessed need for it; and
• “it can be shown that this will reduce the risk of readmission to hospital”.
21. The mental health team’s response went on to say attendance at the course had not been identified as a section 117 aftercare need or as something that would reduce the risk of hospital readmission.
22. The following day, the education advice team asked:
• the Council’s mental health social work team to reconsider; and
• for the discussion to be taken up by NHS Trust Z at a medical review the following week.
23. The following week, NHS Trust Z emailed the Council with its views, summarised below.
• NHS Trust Z considered that having a meaningful occupation will promote Ms D’s wellbeing and social recovery following a period of illness.
• There are benefits for Ms D taking part in an educational activity within her ability as this will increase her confidence and social connection without the stress that could come from a higher level of education.
• This was also “likely to be protective in terms of a future relapse”.
• There was mixed evidence relating to how taking part in occupational and community-based activities affected recovery.
• “We could argue that for [Ms D] doing the course is not about achieving a particular grade but that sense of achievement and connection with others which may have an impact on her mental health and reduce the risk of relapse.”
24. However, NHS Trust Z stopped short of stating that Ms D needed the course as section 117 aftercare. It also did not recommend that Ms D’s section 117 aftercare plan should be changed to include the course.
25. The Council’s mental health social work team received NHS Trust Z’s email and considered it before reaching a decision later that month. It decided the course did not meet the criteria for being section 117 aftercare because there was no clear connection between the need for the course and the mental disorder that resulted in Ms D’s hospital detention. The Council sent an email to Ms D’s parents confirming its decision. The Council noted this would disappoint Ms D and her parents and provided information about how to complain.
26. Ms D’s parents appealed the decision in early October 2023. They considered there was a clear connection between the need for Ms D to attend the course and the mental disorder that had led to her hospitalisation. This is because Ms D had identified the course as being what she needs now as part of her recovery journey.
27. In late October 2023, the Council wrote to Ms D’s parents to advise it did not uphold their appeal. The Council said it considered NHS Trust Z’s earlier advice and gave the following reasons for its decision.
• There must be a clear connection between the person’s mental disorder and the need.
• The course is targeted more to the general wellbeing of a person and there is no clear connection between the course and the mental disorder.
28. The Council reviewed the appeal decision in January 2024 and decided the original decision should stand. The review decision repeated the reasoning of the original appeal decision.

Was there fault causing injustice?

29. Ms D’s section 117 aftercare plan was developed a few months before she applied to go on the course. The aftercare plan did not identify Ms D as having a need for this course.
30. Mr X says the doctor responsible for Ms D’s hospital discharge was also aware of the course and considered section 117 aftercare funds could be used to pay for it. However, the same doctor was involved in writing Ms D’s section 117 aftercare plan and included various services, but not the course, in the plan. There is no indication in that plan that the health and social care professionals considered Ms D needed the course as section 117 aftercare.
31. When Ms D applied for the course, she initially believed a central Government scheme would cover the cost. After it became clear Ms D was not eligible for the Government funding, the Council’s education advice service suggested section 117 as a funding source. This was a legitimate suggestion, since the Code says councils and ICBs should interpret the definition of section 117 aftercare services broadly.
32. As the course was not part of Ms D’s agreed section 117 aftercare plan, it was appropriate for the Council to next consider whether it should be added to the aftercare plan.
33. The ICB was not involved in the consideration because the course did not meet the threshold to be discussed at the joint funding panel. This was not fault, as the ICB is a commissioning body whereas the Council and NHS Trust Z are best placed to understand individual service users’ needs.
34. The Council considered:
• information from the education advice service, which advocated on Ms D’s behalf for the course to be treated as section 117 aftercare;
• legal advice; and
• NHS Trust Z’s advice. In summary, this said the course was likely to be positive for Ms D’s wellbeing and may reduce the risk of relapse. However, it stopped short of stating the course met a need arising from or related to Ms D’s mental disorder and had the purpose of reducing the risk of hospitalisation.
35. The Council took the view that the need for the course was related to Ms D’s general wellbeing and there was no clear connection between the course and the mental disorder that led to Ms D’s hospital detention. The Council therefore refused to include the course in Ms D’s section 117 aftercare plan.
36. The Council made this decision without fault because it:
• properly considered the law, national guidance and its own policy;
• took into account information from education professionals, mental health professionals and Ms D’s parents advocating on her behalf;
• provided cogent reasons for its decision; and
• reviewed the decision when Ms D’s parents challenged it and provided more information.
37. There was no fault in the way the Council reached its decision, so I cannot question that decision.
38. In summary, neither the Council nor the ICB acted with fault in relation to Mr X and Ms D’s complaint.

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Final decision

39. I have found no fault in the way the decision Mr X and Ms D complain about was made. Therefore, I do not uphold this complaint.

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Investigator's decision on behalf of the Ombudsman