Decision date: 14th August 2019
Ms G complained on behalf of her son, Mr A.
In the early 2010s mental health professionals detained Mr A under section 3 of the Mental Health Act 1983 (MHA). He left a rehabilitation unit and became eligible for s117 aftercare in late 2013.
Section 3 of the MHA allows people to be detained in hospital for treatment necessary for their health, safety or for the protection of other people. Section 117 of the MHA imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 3 of the MHA, and the services provided have to be provided for free as they are not ordinary social care services, in legal form.
The National Health Service Trust initially provided Mr A’s aftercare through its standard commissioned community mental health services, so he had nothing special in his s117 care plan although he had the status, as of right, unless or until he no longer needed the services by way of aftercare, for the aftercare purpose (that being the basis for terminating the special free service status under the legal framework as amended).
Ms G had concerns that Mr A remained unwell and was not improving, so she made her own enquiries for other available support. In September 2014 Ms G told Mr A’s Care Co-ordinator she had asked a private care provider (the Provider) to assess Mr A, and later that month she began to pay for, on average, two hours a week of support for Mr A from the Provider. One hour of support cost £14.
In early November 2014 Mr A and Ms G met Mr A’s Psychiatrist and Care Co-ordinator. The Psychiatrist noted that it was agreed that the Care Co-ordinator would seek funding for Mr A’s private support to continue.
In April 2015 Ms G wrote to the Trust and complained about a lack of progress. The Trust replied in May. It apologised for the delay in progressing the application for a Direct Payment. It said this would now be the Care Co-ordinator’s focus of work.
The Care Co-ordinator completed an assessment of Mr A’s needs in June 2015. This noted he wanted a Direct Payment to pay for six hours a week of support from the Provider.
The Care Co-ordinator applied to the CCG (Clinical Commissioning Group) for s117 funding for a Direct Payment for Mr A in November 2015.
The CCG and Council considered the application and approved it for three months. Mr A began receiving a Direct Payment at the end of December 2015. The CCG and Council later agreed to continue funding the Direct Payment after the initial three month period.
In February 2017 Ms G complained to the Trust. Ms G stated:
- There was a delay in arranging the Direct Payment (and, by extension, appropriate support) for Mr A from November 2014 to January 2016.
- During this period she could only afford to pay for a couple of hours of suitable support a week.
- The Trust had not provided adequate alternative support in the interim. She said, as a result, Mr A’s health, and her own, had suffered.
The Trust replied at the end of August 2017. It acknowledged there had been a delay of approximately 12 months in assessing Mr A’s needs. It apologised.
The Trust said the CCG and Council funded s117 aftercare but the CCG had advised it did not backdate or backpay funding for s117 aftercare.
Ms G remained dissatisfied and made a follow-up complaint, via an advocate, in September 2017.
The Trust sent a final response in October 2017. The Trust said it had tried to meet Mr A’s needs through Community Mental Health Team (CMHT) resources. It said once it was determined they were not meeting his needs the team considered a Direct Payment. The Trust said the need for support via a Direct Payment was to do with the social aspects of Mr A’s care and support. It said this was not linked to a health need.
The Trust reiterated its acknowledgement of the length of time it took to complete the paperwork to get a Direct Payment. It repeated its apology. The Trust said that throughout the delay Mr A continued to receive a full commissioned CMHT service. The Trust said ‘the issue of compensation is beyond the scope of investigating this complaint’.
What was found
The LGO found that the Council was at fault, because there should have been sixmonthly s117 reviews and it was the Care Co-ordinator’s responsibility to arrange them. There was no evidence they happened. This resulted in less clear information about plans for Mr A’s care than there should have been.
Delays in Direct Payment
The LGO found that the Trust did consider support from the Provider to be appropriate in meeting Mr A’s needs. It was also concluded that the Trust agreed to apply for a Direct Payment in early November 2014, after Mr A’s meeting with the Psychiatrist and Care Co-ordinator.
In terms of assessing a person’s eligibility for a Direct Payment and applying for one, there are no set guidelines for how long this should take. The LGO consider it reasonable to expect services to complete a non-urgent application in 12 weeks. From the meeting in November 2014 this would have been done by the end of January 2015.
The Trust did not make an application for funding until approximately 52 weeks after the meeting in November 2014. Further, it asked for the Direct Payment to start on 1 January 2016 without any clear rationale of why it was not to start as soon as possible. Records showed payments began at end of December 2015. They were not backdated.
Therefore the Direct Payment actually started around 60 weeks after the appointment in November 2014. The LGO found that this represented an avoidable and unreasonable delay of approximately 48 weeks.
The LGO found that the avoidable delay of 48 weeks was fault on the part of the Trust.
This fault caused financial injustice to Ms G; from the beginning of February 2015 to the end of December 2015 she spent £1,288 on support from the Provider for Mr A.
The fault also caused injustice to Mr A. His Direct Payment was for six hours of support a week. Had the fault not occurred, Mr A would have received 288 hours of Direct Payment support over the 48 weeks from February to the end of December 2015. Ms G paid for as much as she could afford – a total of 92 hours of support. Therefore, even with the support that Ms G paid for privately, Mr A received 196 hours less than he would have if the Direct Payment had been in place earlier. In other terms, he got about one third of the support he would have got if the avoidable delays had not happened. Therefore, Mr A lost an opportunity to benefit from the full support he should have had for 48 weeks.
To remedy the injustices, the LGO recommended that within six weeks the Trust reimburse Ms G the £1,288 she paid on private support. The Trust should also pay Mr A £1,100 as a tangible acknowledgement of the opportunity he lost to benefit from the full support he should have got over 48 weeks. And finally, the Trust should pay Ms G £250 as a tangible acknowledgement of the avoidable stress, frustration, time and trouble she experienced as a result of the faults.
Points for the public and for Health and Social Services
- This approach to delay – unconscionable delay for reasons of understaffing or simple ignorance is absolutely in line with legal principle – most recently clarified in the CP v NE Lincs case in the Court of Appeal – you can search for this case on this site.
- Ms G had stepped up to pay, and she wasn’t doing it from pure choice and generosity.
- Therefore once the inappropriateness of the process and the delay has been identified, she needs restitution of what she had spent and thereby saved the s117 authorities, otherwise they would be unjustly enriched and rewarded in fact by the saving arising from their own default. The principle is the important one: the LGSCO has to take account of the general underlying public law framework in relation to compensation for maladministration, otherwise that would be inappropriate of the LGSCO itself.
- Mr A had lost out on additional support. Over 48 weeks he missed out on 4 hours of support, which we believe to be 192 hours, not 196. There is no indication as to the rate paid into the Direct Payment, and it might have been less than a private purchaser had to pay for the same service. £1100 divided by 196 – or 192 – missing hours, is not even the minimum wage. Again, though, the principle is what matters: an unlawful omission to discharge statutory duties within a reasonable time may not give rise to damages for breach of statutory duty, but it can be compensated for by way of an LGO recommendation, such as this one, because the LGSCO is not a court of law and can be more generous in order to put people back into the position that they should have been in.
- It is also interesting to note that 12 weeks was regarded as a reasonable time in which to achieve the process required for a direct payment.
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The full Local Government Ombudsman report of Dorset County Council’sactions can be found here