Decision Date: 28 October 2024
Summary
Mrs B complained that Essex CC (‘the Council’), NHS Suffolk and North East Essex Integrated Care Board (‘the ICB’) failed to meet her late mother’s, Mrs G’s, s117 aftercare needs following her discharge from psychiatric hospital in autumn 2018, until her passing in February 2024, in a care home in which the family had placed her. She blamed the local Trust and Council for delay in completing a review of Mrs G’s care and support arrangements following her hospital discharge.
What happened
Mrs G had been diagnosed with Lewy Body Dementia, and presented with psychosis and hallucinations.
She was detained in March 2018, under the Mental Health Act 1983 (MHA 1983). She was discharged home from hospital with a funded homecare package in September 2018. This package consisted of 9 hours of weekly domiciliary care and support within her home in the community. The Council and the Trust confirmed a section 117 aftercare plan had not been completed at the time but asserted that it was clear that the provision was made s117 despite the absence of documentation, because it had been free.
A discharge summary compiled by the Trust confirmed a follow up in-person appointment would be completed within 7 days of Mrs G’s discharge date. [The report does not state whether that actually happened.]
There was no review of Mrs G’s care and support arrangements within 4 to 6 weeks.
The Council did not attempt any contact with Mrs G or other family members. This continued for about a year after the discharge from hospital.
In October 2019, the family had concerns about the deterioration of Mrs G’s wellbeing. Mrs B and other family members decided to move Mrs G to a residential care home. [The report does not mention whether she agreed to go, or who paid for it or had authority to sign a contract or whether anyone thought of the Deprivation of Liberty Safeguards.]
The Council completed a review of Mrs G’s needs while she was in the residential care home in December 2019, concluding that Mrs G’s needs could be met by increasing her home care package by a few hours. The Council’s view was that Mrs G wished to return home, but her family disagreed. [The report does not mention any assessment of her capacity at that time or whether she still had a home to go to, or what the reviewer did regarding Mrs G’s apparent wishes.]
The Council completed a further review of Mrs G’s needs in July 2020. Her family felt the care home was adequate for Mrs G’s needs, and she was settled and now with a falls risk. The review acknowledged that a s117 aftercare plan was not completed following Mrs G’s previous hospital discharge. The assessor completed a s 117 plan as part of their review at that point and did not suggest that the status of being a s117 patient could be terminated.
The review outlined the depot injection Mrs G received via the community mental health team as the only s117 need identified. The review found that Mrs G had needs which now required 24-hour residential care.
The assessor said that these needs fell under the terms of the Care Act 2014, rather than the MHA 1983. The report concluded that Mrs G could make the decision to stay at the residential care home and would continue as a self-funder ‘as she did not meet the eligibility threshold.’ The Council’s position was that Mrs G chose to remain in the care home under a private arrangement.
The Council and the NHS completed a further s 117 review, which reached the same conclusion as the previous review. The residential care home placement was listed as a separate privately funded arrangement.
Mrs G remained in the residential care home until her death in February 2024. During the period of the placement, Mrs B complained to the Council and the NHS about the decision not to fund Mrs G’s placement as aftercare services, in line with the MHA 1983. It maintained that Mrs G’s need for residential accommodation was because of her needs, which fell under the Care Act 2014.
She also complained that the late assessment of Mrs G’s needs did not properly consider her mental and physical decline, which meant the family had to place her in a residential care home. Mrs B felt that Mrs G’s placement prevented her from being readmitted to hospital.
What was found
The LGSCO found fault with the Council’s and the ICB’s failure to ensure a s 117 aftercare plan was written at the time of Mrs G’s discharge. The LGSCO stated that Mrs G was entitled to s117 aftercare services following her discharge.
The fact that the homecare package she received while living at home was not charged for was in line with s 117 of the MHA 1983. This meant that there was no injustice as such to Mrs G.
The Council reported that it had since changed the process to ensure its officers record all discharge plans on its system using a prescribed template, and thus, the LGSCO concluded that further recommendations for improvement were not necessary.
The LGSCO found that Mrs B and other family members did not report Mrs G’s declining wellbeing to the Council, MHS Trust, or the ICB.
As the family had previously contacted the relevant authorities about discharge arrangements, the LGSCO stated that it would have been reasonable for the family to contact the Council or the Trust.
It also noted that the lack of contact from these organisations to complete a review following Mrs G’s discharge likely contributed to the lapse in communication.
The LGSCO did not find fault with the NHS Trust hospital, as it felt that Council retained statutory responsibility for the completion of a review of Mrs G’s care and support arrangements.
The LGSCO found fault with the Council’s delay in completing a review, only doing so when Mrs G had moved to a residential placement. The LGSCO found that this was not in line with the care and support statutory guidance. However, it concluded that this likely did not cause injustice to Mrs G, as when the review was completed, it only resulted in a slight increase in an offer of notional support hours if she were to go home.
The LGSCO acknowledged that the care and support initially provided met Mrs G’s aftercare needs while she was having care at home. Evidence suggested her mental health was at risk of deterioration without this support, and this risk was present while she lived in her own home. When her family decided to place her in a residential care home, Mrs G’s risk of deterioration was likely minimised because she now had constant care from the home. However, the LGSCO stated that the family could not decide what constituted appropriate care.
The LGSCO did not find fault with the decision-making process of the Council with regard to Mrs G’s assessed need for residential care accommodation. Their initial assessments established that Mrs G’s needs could be met by additional domiciliary care hours. Her family instead chose to allow Mrs G to remain in her care placement under a private arrangement.
The LGSCO found that the Council and the ICB were not under obligation to fund this placement under the terms of MHA 1983.
Following a later assessment, the Council concluded that Mrs G had a need for residential accommodation, but as her needs fell under the Care Act 2014, she was not eligible for funded placement. The LGSCO concluded that there was no fault in the Council’s decision.
The LGSCO did not uphold Mrs B’s complaint about accommodation charges. While fault was found in the delay in reviewing Mrs G’s care, it did not cause the claimed injustice regarding accommodation charges.
The LGSCO concluded that as the Council provided evidence of changes in its process, it was not necessary to make another recommendation.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This was a joint investigation between the local and central ombudsmen, because s117 Mental Health Act aftercare is a joint duty.
We think that the Ombudsman’s investigator has got this one wrong, we have to say, in terms of the law.
The report says nothing about the inconsistency between the decision that she had 24 hour needs, and the suggestion that she did not ‘meet the eligibility threshold’ now they knew she was entitled to s117 – or indeed, under the Care Act.
Under the Care Act one’s wealth can make one a self-funder but it does not affect one’s eligibility, as such; it simply negates the duty to meet the needs – see s18.
On the other hand, for s117 purposes, if she was still a privately funded client at the time, the Council was obliged to ignore the voluntary arrangement, because that is the law for all assessment of needs for any State provision.
For s117 OR Care Act purposes, one can of course meet one’s own needs, if one chooses to, rather than relying on the State, but one’s willingness to do that would have to be capacitated (or arranged by a deputy or power of attorney holder, with lawful authority) and is not allowed to affect the collation of the extent of one’s full needs in the first place. The investigator has made the error of working backwards from asking whether the service was needed for the aftercare purpose given the family had made a private self-funded arrangement, as opposed to working forwards from the aftercare purpose to the identification of needs and then consideration of whether the person has a reason not to need follow through on the funding, which differs on account of whether one is dealing with a s117 patient or a Care Act patient!
When a person is willing to meet their own needs (such as signing a tenancy in supported living, or spending money on meeting their own needs) the arrangements just become the context for any other input – or here, given her status, any other aftercare services one needs – but that is not a question of eligibility as such; the s117 status arose and continued under the statute and had not been terminated.
Whether there was a need for accommodation by way of aftercare (a placement, within what could have been a s117 funded package of care) turned on whether accommodation was needed on account of the statutory aftercare purpose and it is not correct to say that it must be needed on account of the original mental disorder, because the case law that said that has been superseded by amendment of s117 in the Care Act, confirmed in Hansard, regarding Parliament’s intention.
It cannot be correct to say that just because she had deteriorated it was not an aftercare need, unless she was now so ill that her mental disorder now formed no part of her present circumstances. There is no doctrine of supersession of one mental disorder by a physical disorder related to the proportion of the physical vs mental health impact on the service requirements that we can find in the case law, unless the mental disorder has stabilised, and there is simply insufficient information in the report about that to fill in the details.
On the other hand, if what is really being said was that she did not NEED to BE IN A CARE HOME at all, then she should have been supported to go home, whatever the family thought and the assumption that she had needed s117 services at home could then have continued. Even if it had not, for some reason we cannot imagine, the value of her property would not have then been counted, and she might not have been a self-funder or a full cost payer, under the Care Act.
The issue was obviously whether the cost of the care home should have been free because it should have been under s117.
Where the evidence was, that her 24 hour needs were not related to ‘mental disorder’ or that the care she needed was 24 hour care but that it was not for the purpose of aftercare, and whether such a view would have been defensible, when one is not told of any completely new unrelated need for more intensive care, rather than physical decline on the basis of Lewy Body Dementia, a mental disorder, was simply not explored.
The Ombudsman said this:
“Accommodation can generally only be part of section 117 aftercare if the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); the need must be as a direct result of the reason the patient was detained. The accommodation must reduce the risk of a deterioration in the patient’s mental health that may result in potential readmission to hospital for treatment.”
This is the part that is not supported by case law any longer, and even when it was first mooted, in a case called Afework, it was doubted by practitioners’ and academic commentary at the time.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Essex County Council (24 000 170) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!