Date of decision: 27 August 2025
Summary
A woman complained that the Council wrongly charged her late relative’s estate for residential care, despite her being detained under the Mental Health Act and eligible for free Section 117 aftercare. The Ombudsman found that the Council failed to complete the required aftercare assessment and plan. Although this was fault the Ombudsman considered that if the Council had done so, it would, on the balance of probabilities, have found the person discharged from hospital did not have section 117 aftercare needs requiring residential care. The Council agreed to apologise and make a symbolic payment to the woman in recognition of the uncertainty caused to her by the identified fault.
What happened
In October 2020, Mrs Q, who had dementia, was detained under section 3 of the Mental Health Act due to delusions, paranoia and low mood. She received hospital care until December 2020, when the Council assessed her as needing full support, but did not complete a s117 aftercare plan.
On 16th December 2020 the Council assessed Mrs Q’s needs. The assessment found that Mrs Q had two specific needs relating to her s117 aftercare. The first was for support with medication. The second was for support with her continuous delusional beliefs. The assessment did not provide an analysis of whether Mrs Q met the criteria of “accommodation plus”.
A Best Interests meeting concluded she required 24-hour residential care but did not identify a primary health need on account of her non-aftercare needs. It decided that a dementia residential placement would meet Mrs Q’s needs.
In late December 2020 the hospital discharged Mrs Q, and the council commissioned a residential care home placement for her. The Council did not complete a s117 aftercare plan.
In February 2021 the Council completed a care plan for Mrs Q after a review, which had concluded that she could not return home, because without 24 hour care her mental and physical health could decline, resulting in re-admission to hospital. The review said that her care home placement should become permanent.
The Council began invoicing for her care costs, pending Court of Protection proceedings about her capacity. The Council said it would not pursue payment of Mrs Q’s care costs while Court of Protection proceedings were continuing.
In February 2022 the Council completed a care review for Mrs Q. The review found Mrs Q needed to remain in a 24 hour setting and that she should remain in her current placement.
In April 2022 the Official Solicitor who had been appointed to represent Mrs Q in the Court of Protection Proceedings, questioned why Mrs Q was not receiving s117 funding to pay for her care home placement. The Council agreed to investigate.
A care plan review completed by the dementia support team in late April confirmed she met s117 criteria and should remain in a care home environment with six-monthly s117 aftercare reviews.
A later witness statement from Mrs Q’s social worker said that while Mrs Q had s117 aftercare rights, the Council did not consider she had s117 aftercare needs. The statement recognised that the dementia service disagreed. The witness statement said there would be a meeting between the dementia service, the social worker and her consultant to complete a s117 aftercare plan. If the meeting found Mrs Q had needs for s117 aftercare, the Council would accept her care should have been free, and it would clear the debt for her care needs.
In September 2022, the Council completed a s117 plan identifying only medication support and management of low mood as aftercare needs—insufficient for “accommodation plus” status that would make her care required to be free. The plan noted Mrs Q’s care needs in relation to personal care, nutrition, domestic care, maintaining physical and mental health, walking frame and using her wheelchair, and social activities.
Her physical health then declined, and she required Continuing Healthcare (CHC) consideration, but the ICB refused a CHC review, citing the mere fact of her s117 entitlement. The social worker contested this, noting the mere fact of s117 rights did not exclude CHC eligibility, but the ICB maintained its stance.
Mrs Q was hospitalised for pneumonia in late 2022 and returned to her care home placement. Following her return her dementia nurse asked her doctor if he thought she should still meet the criteria for s117 aftercare. The doctor said she still experienced psychotic symptoms and did not always take her medication which were both reasons she was admitted to a psychiatric unit. He did not recommend discharging her from s117 aftercare status.
A s117 aftercare plan completed in January 2023 said that Mrs Q had social care needs for help using her wheelchair and taking her medication. The plan said she still required the input of a psychiatrist and Mental Health because of her depression and low mood.
Her relative, Mrs X, complained that the Council’s charging breached its s117 duties. Mrs Q died in May 2023.
The Council responded to Mrs X’s complaint. It admitted fault for not completing the required aftercare plan at discharge, apologised, but maintained that later evidence showed residential care was not part of her s117 entitlement.
The Council told the Ombudsman that:
- Mrs Q’s section 117 aftercare plan showed her section 117 aftercare needs were for help taking medication and overseeing her psychiatric needs. Her other needs are met under the Care Act and were chargeable.
- The aftercare plans showed which of Mrs Q’s needs should be met under the Care Act. Only needs met under s117 aftercare needed to be non-chargeable.
- It provided Mrs Q with a residential care home placement because she had 24-hour needs arising from her physical health and not her mental disorder.
What was found
Prior to Mrs Q’s discharge from hospital in December 2020, an assessment of her needs was completed. This assessment did not show how the Council concluded Mrs Q’s care home placement did not meet the criteria of “accommodation plus.” The assessment should have included these details. The lack of a suitably detailed assessment was fault.
The Council should have completed a s117 aftercare plan when Mrs Q was discharged from hospital. It did not do so. This was fault.
The absence of a detailed s117 assessment or aftercare plan meant there was no record of whether a care home placement was necessary to meet her aftercare needs when she was discharged from hospital. As a result, Mrs X was caused uncertainty about whether Mrs Q should have been charged for her residential care costs. This was injustice.
The Ombudsman considered on the balance of probabilities and in light of the available evidence that Mrs Q would not have met the criteria of accommodation plus. This was because:
- The Best Interests meeting found Mrs Q needed 24 hour residential care but did not refer to this being funded by s117 aftercare.
- A s117 aftercare assessment was completed prior to Mrs Q being discharged and it identified she needed support with medication and for her continuous delusional beliefs. There is nothing to suggest she required a specialised residential care placement to meet those particular needs.
- The Ombudsman did not consider that the available evidence showed Mrs Q’s case met the criteria for accommodation to form part of a person’s s17 aftercare package.
The Council was required to apologise, pay £500 in recognition of the uncertainty caused to Mrs X by the Council’s failure to complete a detailed s117 assessment explaining why residential care did not specifically meet Mrs Q’s aftercare needs.
The Council was required to identify the reasons why a s117 aftercare plan was not completed when Mrs Q was discharged from hospital, and explain what action it would take to prevent a recurrence of this fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We have serious concerns about the Ombudsman’s conclusion that residential care was probably not compelled here (at any stage) by dint of the statutory s117 aftercare purpose, although the report quotes the relevant sections of the MHA Code of Practice as follows: section 117 aftercare can include accommodation and must continue as long as the person needs those services.
In the absence of a detailed s117 assessment explaining the Council’s reasoning it is difficult to know for sure, but we can see several aspects of the evidence that would have been consistent with Mrs Q’s aftercare needs being seen to have called for the accommodation as the fundamental basis for the services.
For example, in December 2020 she was delusional and needed access to staff 24 hours a day to monitor and offer emotional reassurance frequently throughout the day to prevent her becoming distressed and presenting as she did on admission to hospital.
The care plan review completed in February 2021 said that Mrs Q could not return home because without 24 hour care her mental and physical health could decline resulting in readmission to hospital. This is a clear indicator that the reviewers were operating under s117 and considering the accommodation was essential.
The dementia support team produced a care plan in April 2022 which said that Mrs Q met the criteria for s117 aftercare and should remain in a care home environment. The s117 aftercare plan completed in September 2022 said that Mrs Q needed help – amongst other things – with maintaining her mental health. Her s117 aftercare needs were for medication depression and low mood but ‘these needs are managed and supported by the Dementia Service, her GP and her care home and so, she did not meet the criteria of accommodation plus for her care home placement.’
That would of course be true, had the discussion been about direct provision of ordinary accommodation, but it was not; she was already in a care home, and settled!
Later in 2022 her doctor said she still experienced psychotic symptoms and did not always take her medication which were both reasons she was admitted to a psychiatric unit.
The s117 aftercare plan completed in January 2023 said that she still required the input of a psychiatrist and Community Mental Health Team because of her low mood.
The Ombudsman refers to the fact that the s117 aftercare assessment completed prior to Mrs Q being discharged (although identifying that she needed support with medication and for her continuous delusional beliefs) did not suggest she required a residential placement to meet those needs. It seems to us that the professionals involved in aftercare planning in this case may not have asked themselves the right questions and that the fact that there was no suggestion of the need for the residential placement being tied to the aftercare purpose is thus not something that they could rely on. It’s a bootstraps argument which the Ombudsman should not be taking FOR the inadequate s117 planning process, in our view.
If they had done so, the answer would likely, in our opinion, have been that Mrs Q’s care and support needs were accommodation-related, or that meetig them would be useless if she had no home or only a home where her unpredictable needs could not be met. We can certainly see that the provision of accommodation would have reduced the risk of Mrs Q’s mental health condition worsening and the likelihood of her returning to hospital for treatment for mental disorder – the test for aftercare needs. It is not our role to proffer this sort of opinion, but neither was it the Ombudsman’s, and we are shocked that an organisation that so often refuses on the basis of its proper role and jurisdiction not to question the merits of a public body’s thinking, has been so game to do so here. We recognise however that the role of evaluating the compensation is related to the organisation’s view of injustice, and can see that this is what the investigator was doing. We still think he or she got it wrong, however, on the mere facts, and the decision is at odds with others taken about s117 needs for accommodation, in our view.
The shared duty of the Ccouncil and the NHS body under s117 should have ensured inter-agency collaboration and commissioning from the point of discharge. The ICB’s later refusal to reassess for CHC funding on the mistaken assumption that s117 excluded all such consideration further demonstrates systemic misunderstanding. Section 117 does not displace NHS duties altogether and not at all where the professionals are asserting that most of the needs are being met under the Care Act, in the first place!
Mrs X complained about matters going back to late 2020 but the complaint was not made to the Ombudsman until after Mrs Q died in May 2023. The Ombudsman exercised discretion to investigate her concerns as she had continuously progressed the matters complained of throughout the period. This fits with the approach that the Administrative Court would have taken, had the family preferred to use legal process to claim restitution – because there would have been what is called an ‘ongoing breach’ of the Mental Health Act.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Essex County Council (24 003 413) 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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