Date of decision: 13 February 2025
Summary
The joint Ombudsmen’s team found that Cambridgeshire and Peterborough NHS Foundation Trust, Peterborough City Council, and the local NHS Integrated Care Board failed to allocate a care co-ordinator to a man entitled to aftercare under section 117 Mental Health Act, even though this had been required as an outcome of an earlier process.
What happened
In May 2022, the Ombudsman upheld a complaint that the Council, Trust, and ICB had not provided aftercare services under section 117 of the Mental Health Act to Mr X’s son, Mr Y, following his detention under section 3 of the Act. The Ombudsman required the organisations to arrange a section 117 review.
At some point, in email communication the Trust noted that “In Peterborough the only service we have available for patients with [Mr Y’s] level of need is an [outpatient clinic] run by the consultant who also works in [in the inpatient unit where Mr Y was detained under the MHA and which he will no longer engage with]…” The Trust said it could not allocate anyone to act as Mr Y’s care co-ordinator as it would be outside of its contracted services. It said this was because Mr Y was not receiving any treatment or being monitored by any of its secondary mental health services. The Council noted the ICS policy said the care co-ordinator needed to be a health professional. The Council also said that, from a practical perspective, a social worker would not have access to the necessary information from mental health systems.
A second investigation in November 2023 had found that, despite a further recommendation, no review meeting had taken place and no care co-ordinator had been appointed, even though a mental health assessment confirmed the need for one.
The Ombudsman instructed the organisations to appoint a care co-ordinator and hold a review by January 2024. At the end of January 2024 the ICB told the Council that the Trust would offer a care co-ordination service for people eligible for s117 who also have a learning disability. It said this would include Mr Y.
In Spring 2024, the Trust said it could not act outside its standard operating procedures when there was “quite a waiting list” for care co-ordination for people who ‘met’ the threshold. As such, the Trust said Mr Y was not on a waiting list as it had not been able to identify a suitable team. Mr Y did not meet the threshold because he would not take medication or be actively treated.
The ICB’s earlier suggestion of an ICB nurse did not go ahead because of capacity within the service.
By August 2024, Mr X reported that no care co-ordinator had been allocated. The organisations blamed restrictive local policy, gaps in commissioned services, and disagreements over responsibility. Mr Y’s refusal to work with certain clinicians due to past trauma. Meetings occurred, but no substantive care co-ordination was provided.
What was found
The Code of Practice says that:
- “After-care for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the care programme approach” (section 33.14).
- The Care Programme Approach (CPA) “requires the clear identification of a named individual who has responsibility for co-ordinating the preparation, implementation and evaluation of the CPA care plan” (section 34.5).
- “…It is…essential that a suitable care co-ordinator is identified. For patients who have been or continue to be subject to provisions in the Act, this is likely to be a different person from the responsible clinician, but need not be” (section 34.10).
- “Professionals with specialist expertise should…be involved in care planning for people with autistic spectrum disorders or learning disabilities” (section 34.21)
It has long been established that although the Code is not law, as such, it must be followed unless there is some very good reason to the contrary.
The Ombudsman found serious fault by all three organisations:
- The local policy wrongly restricted the care co-ordinator role to health professionals, contrary to national guidance, which allows social workers to fulfil this function. This policy failure was jointly the responsibility of the Trust, Council, and ICB.
- Commissioning arrangements failed to provide a care co-ordinator for people with learning disabilities not open to secondary mental health services, creating a service gap.
- The organisations failed to consider creative, bespoke solutions—such as individually commissioning a co-ordinator outside standard services—despite having the power and flexibility to do so under the section 117 framework.
- The failure to allocate a care co-ordinator persisted despite two Ombudsman recommendations, leaving Mr Y without a statutory entitlement and causing avoidable distress and uncertainty to both Mr Y and his father.
The Ombudsman ordered written apologies and symbolic payments of £200 each (£600 in all) from the Trust, Council, and ICB to both Mr X and Mr Y separately, and required urgent action to appoint a care co-ordinator and resolve the commissioning gap.
In its response to the joint team’s enquiries the ICB said it understood that the Trust “had agreed to take on the care co-ordination role (through a named clinician) for all adults with learning disabilities who are subject to s117”.
The ICB also said that it recognised “that it is not helpful for patients that there is a dispute between [the Trust] and the ICB in relation to the perception of what is commissioned for s117 case management.”
The ICB said that, in order to resolve this, senior ICB and Trust officers had been working “to find a way forward”. The ICB said they expected “to take a business case through the ICB internal guidance processes in December which will make it much clearer for patients around offers of case co-ordination.”
The joint team said that if ‘standard’, regularly commissioned services and protocols could not encompass a care co-ordinator for Mr Y, the organisations should work together, with staff with appropriate levels of authorisation, to agree how they will fund, procure and case-manage a solution.
The organisations were given three months to provide the Ombudsmen with an action plan about how they will address and resolve the commissioning/policy issues the Joint Strategic Needs Assessment and this case have highlighted. This should include information about how it will identify any other people impacted by the same issues.
Within three months of the final decision the Council should invite the relevant scrutiny committee to:
- consider the policy and commissioning issues this case has highlighted,
- consider identifying wider lessons learned about effective joint working with the Trust and the ICB, and
- monitor the Council’s progress in addressing these issues (with the Trust and the ICB).
And within one month of the final decision the ICB should advise the relevant NHS England oversight department/team of this case, noting the specifics of Mr Y’s case and the wider learning points. The ICB should keep NHS England updated, including by sending it a copy of the action plan requested above.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Section 117 Mental Health Act 1983 imposes a joint duty on local authorities and ICBs to provide or arrange free aftercare for those detained under section 3, with the aim of reducing relapse and readmission.
The Mental Health Act Code of Practice and Care Programme Approach (CPA) require a named care co-ordinator for all section 117 aftercare recipients. The care co-ordinator can be any suitably skilled professional, including social workers; restricting this to health staff is unlawful.
The Community Mental Health Framework, while NHS England appears to think that it has the power to mandate the replacing of the CPA by this new approach (on which the Joint Ombudsman’s report passes comment, below), retains the principle that people with complex needs must have a named co-ordinator, and that all care plans must be co-produced, person-centred, and compliant with legal principle.
Failure to provide a statutory service, such as a care co-ordinator, is a breach of public law principles and is unlawful.
The Ombudsman correctly identified breaches of statutory duty but could have been more explicit in stating that the failure to allocate a care co-ordinator is not just “fault” but unlawful conduct the MHA.
The report’s recommendations for scrutiny, action planning, and notification of NHS England reflect good practice in addressing systemic failures.
Councils and NHS bodies must ensure local policies do not unlawfully restrict statutory entitlements or roles.
Where commissioning gaps exist, authorities must use their powers to arrange bespoke support, including through direct payments or spot purchasing, rather than leaving people without support.
People entitled to aftercare or care co-ordination should challenge any refusal based on policy or commissioning gaps, citing their statutory rights and relevant case law.
Advocacy groups should press for transparency, co-production, and legal compliance in care planning and commissioning.
Comment on the supposed ‘supersession’ of the CPA by the CMH Framework
In September 2019, NHS England published ‘The Community Mental Health Framework for Adults and Older Adults’ (the Framework). It proposed “replacing the CPA for community mental health services, while retaining its sound theoretical principles based on good care co-ordination and high-quality care planning” (section 2.2). It noted an intent to subsume “the important aspects of the CPA for community mental health services, including care planning and care co-ordination, and reframe them in a system that will work for everyone…” (section 3.2.2). It said that “For people with more complex problems, who may require interventions from multiple professionals, one person will have responsibility for co-ordinating care and treatment. This co-ordination role can be provided by workers from different professional backgrounds” (section 3.2.2).
In March 2022 NHS England issued a position statement on the CPA. This said the CPA had been ‘superseded’ by the new Framework approach. The position statement noted:
“Care co-ordination is important work and has often been under-appreciated as a function which should provide high-quality care to service users, often with an outmoded and historically resource-constrained system. While many service users find care co-ordination valuable – and while care co-ordination may form a significant part of the overall support that someone with a severe and complex mental health problem receives – care co-ordination is not a meaningful intervention in and of itself” (paragraph 10). “…Service users and carers should…have clarity as to who they can contact via having a named key worker; in most cases we expect this would be the existing care co-ordinator for people already under their care of services…best practice would be a key worker who can form a therapeutic alliance with the service user…” (paragraph 12).
The position statement also noted: “There will be people with a learning disability and people who are autistic who access mental health services and would be entitled to the same offer as everyone else accessing those services. Services therefore need to be provided in accessible ways and with the required reasonable adjustments. Services should ensure that the changes set out in this Statement are applied for specialist learning disability and autism pathways where people are receiving assessment, care and treatment for their mental health and behaviours that challenge” (paragraph 24).
The joint ombudsmen commented on this stance, in this report:
“The introduction of the Framework, to replace the CPA, has not fundamentally changed this position. It is a new approach but it still aims to ensure the person is kept front and centre, and to try to minimise bureaucracy. The aim is to help the person get the right support from the right place at the right time. It also aims to avoid situations where a person cannot get the support they need because of the way services are set up and administered.
This seems particularly relevant to Mr Y’s case; there is a stark contrast between the aims and what is happening for him. Importantly, the Framework does not suggest the removal of the care co-ordinator role. It continues to see this as a crucial part of delivering successful care.
Guidance highlights that the care co-ordinator does not need to be someone who is the most involved in the person’s day-to-day care. Rather, they need to have the authority to bring together the people involved in the person’s care and lead the process of hearing the key stakeholders’ views. They do this to lead to the production of an agreed plan and they make clear arrangements to keep its success under review.
The definition of s117 aftercare is very loosely defined. It leaves commissioners with considerable scope to act creatively to fund any particular service, support or activity that may help the person to remain out of a mental health hospital. In this context, it does not seem unrealistic for the organisations to consider the use of a bespoke, individually-funded route to commission a care co-ordinator outside of usual secondary mental health services. I have not seen any evidence to suggest this has been considered or discussed.”
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Peterborough City Council (24 005 859) 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.
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