London Borough of Lewisham Council and CCG at fault for poor s117 aftercare assessments and delays in funding

Decision Date: 24th October 2019

What Happened

Ms X complained on behalf of her mother, Mrs X.

Ms X complained that:

  1. the Council and CCG failed to pay for the accommodation’s service and utilities charges as part of section 117 aftercare; and
  2. the Council delayed in responding to Ms X’s attempts to resolve the matter.

Mrs X had a history of chronic paranoid schizophrenia.

In March 2016, she was detained for treatment under section 3 of the Mental Health Act 1983. Mrs X moved from psychiatric hospital to a sheltered housing unit in July 2016. At first this was on section 17 leave. She was discharged from section 3 detention and placed on a Community Treatment Order (CTO) in August 2016. She has lived at an extra care sheltered housing unit since then.

Ms X asked the Council to confirm that section 117 aftercare would apply to the liability to pay the rent, but they replied stating that section 117 aftercare only covered the support Mrs X received to keep her safe while cooking and support her daily care needs. It said the rent was a separate issue which needed to be paid for separately. (See the LGO’s decision on Solihull (19 002 160) on a similar point, on this site and online).

In July 2017, Ms X complained to the Council about the charges. In August 2017, the Council wrote to Ms X to acknowledge that the decision to place Mrs X in sheltered accommodation was made to meet an aftercare need arising from her condition and it would refund any rent already paid. But the Council had still not refunded the money when the LGO investigated.

At the end of 2017 Mrs X spent numerous months in hospital due to pneumonia. This ended her entitlement to housing benefit. In May 2018 Ms X informed the Council, and asked for s117 funding to be used to cover what the housing benefit previously paid for.

After receiving a reminder from the sheltered housing unit about rent arrears, Ms X contacted the Council in June to remind it to pay Mrs X’s rent. The Council replied, stating, it would refund Mrs X’s rent, service and utilities charges, minus previous housing benefit (as different section of the Council had already contributed, based on what appeared to be her own liability to pay rent) up to the third week of the financial year 2018/19.

However, before it could set up any payment, it needed to complete Mrs X’s section s117 review.

Ms X chased the Council for the refund and rent payments twice in July 2018. The Council told her that the Community Mental Health Team (CMHT) had yet to finish its review and were waiting for advice from a psychiatry consultant. The Council said it could not decide what could be paid for under section 117 until this had been completed.

The Council did not provide any evidence to show that the CMHT sought advice from the psychiatrist or that it even chased the psychiatrist for a response at that time.

On 26 February 2019, the Council replied to the LGO’s initial enquires about the complaint. In response to a question about who should be paying Mrs X’s accommodation charges, the Council said “Not yet determined. Awaiting decision following Consultant’s view”. There was no evidence the Council sought or chased the consultant’s view at that time.

Between 2016 and 2019 the Trust and the Council both carried out continuous CPA assessments and reviews. On 11 March 2019, Mrs X’s social worker completed a care plan review. Mrs X’s family were not present. The review decided to reduce the duration of the care workers’ visits because Mrs X could do many of her activities independently. A meeting in May concluded that Mrs X’s current care package could be provided with the same level of support in other accommodation, such as ordinary sheltered housing…

Ms X said that she was unaware of March 2019 review or the May 2019 decision until she found out about them through the Ombudsmen’s investigation.

What was found

The records of the organisations’ original consideration of what Mrs X needed for the purposes of the statutory aftercare purpose and thus within the scope of free section 117 aftercare were limited. There was no section 117 aftercare assessment or aftercare plan dating to Mrs X’s discharge from hospital.

The only record available was a discharge summary. The lack of records constituted fault, because all three organisations should obviously keep adequate records of section 117 aftercare planning and of what is provided under section 117.

However there was no injustice caused, as examining other evidence, the LGO concluded that it was more than likely that the extra care sheltered accommodation was originally part of Mrs X’s section 117 aftercare needs and hence inside the scope of her entitlement /package.

The Council and CCG have a joint duty to provide section 117 aftercare. Mrs X and her family should not have been approached to fund this. While the extra care sheltered accommodation remained part of Mrs X’s section 117 aftercare, the Council and CCG should have met the full cost of her residence there including service and utilities charges. Failing to do so was fault.

The care planning and reviews for her aftercare should have been managed jointly under the CPA.

However, in Mrs X’s case, the Council continued to assess and plan for what it considered her social care needs separately, while the Trust did the same for what it considered her mental health needs.

This approach was contrary to the statutory guidance on both the Care Act 2014 and the Mental Health Act 1983 and therefore at fault.

This may have contributed to the organisations’ confusion about what care Mrs X was receiving or entitled to under section 117.

The Council, Trust and CCG did not show any real evidence of a thorough re-assessment of Mrs X’s section 117 needs, in line with guidance and local policy, since she had been discharged from hospital. This was fault. The LGO considered the assessments/reviews not thorough enough, for the following reasons:

  • The Council and Trust considered Mrs X’s mental health and social care needs separately, rather than jointly, under the CPA approach.
  • None of the CPA reviews conducted by the care co-ordinator and consultant psychiatrist between 2016 and 2018 stated explicitly what Mrs X was assessed as needing to receive under section 117.
  • The meeting of March 2019 concluded that Mrs X’s current care could be provided with the same level of support in different accommodation, for example ‘ordinary’ sheltered accommodation. However, this was not a formal CPA review; the minutes referred to it as ‘a review of the November 2018 CPA review’ and the right people were not involved.
  • There was no evidence of an attempt to involve Mrs X or her family in the meeting of March 2019, as required by the Code of Practice and the Trust’s policy.
  • While the notes of the meeting mentioned a psychiatrist’s report dated January 2019, there was no evidence of Mrs X’s psychiatrist being involved in the meeting. There was no written recommendation by Mrs X’s psychiatrist for a change to her section 117 aftercare, as required by paragraph 16.8 of the Trust’s section 117 policy.
  • There was no evidence that the Council, Trust and CCG ever communicated their decision to Mrs X and her family or tried to source alternative appropriate accommodation.

The LGO stated that Mrs X’s accommodation and associated service and utilities charges should be treated as section 117 aftercare until the Council, Trust and CCG show that a proper review of her section 117 aftercare needs has concluded she no longer needs it for her aftercare purpose. The organisations could not properly end the entitlement retrospectively.

As a result of faults by the Council, CCG and Trust in the way they recorded and reviewed her aftercare needs, Mrs X had to pay for extra care sheltered accommodation and associated charges, which should have been provided free of charge.

The Council delayed and at times completely avoided replying to Ms X’s enquiries and complaints about charges and funding for her mother’s aftercare. This was fault. This led to Ms X having to spend unnecessary time and trouble in chasing the Council for responses and in complaining to the Ombudsmen.

The LGO recommended the Council and CCG should refund any rent, service and utilities charges Mrs X paid since 2016, minus Housing Benefit. They must also start paying her rent, service and utilities charges at the extra care sheltered accommodation until a properly conducted review decides that she no longer needs this accommodation as part of her section 117 aftercare. The LGO also recommended the Council pay Ms X £500 and apologise to her as well.

Points for the public, service users, CMHTs, families, authorised proxies, and the council

This is another complaint inadvertently flagging up that the law is being largely ignored by s117 care planning teams, as we have long tried to highlight through our work.

The question needs to be asked in this specific way, we suggest, by advocates, service users and care planning teams, for s117 patients:

  • DOES someone need a stable roof over their head for the purposes of aftercare (ie for the other aftercare services planned (likely to be specialist mental health monitoring, prompting and supervision services) to have a stable context or environment in which they might feasibly be expected to work, to prevent readmission to psychiatric hospital?)
  • If so, does the person need to have that roof provided – which in this context meant funded by way of repayment of the rent (but see below for our view of the implications of that particular ‘fudge’!) – or are they interested voluntarily in taking a tenancy in a setting that is merely signposted to – where services are already commissioned? IF A PERSON (or their deputy or attorney for finance and property) CHOOSES TO TAKE A TENANCY THAT IS OFFERED TO THEM, then it is not necessary for any public body, even under a duty like s117, to insist that the council pays for personal liability arising from that choice. 
  • If they do not have a need for this specialist environment, ie they just need a roof over their head, when they’re coming out of hospital, like everyone needs a roof, then the housing element does not have to be provided as part of the s117 aftercare. The law is clear on that principle, although not on how one reaches that conclusion.

But the LGO’s report leaves another elephant in the room unaddressed. We think that the council cannot make people who deserve a placement in specific accommodation where there is a service onsite, take a tenancy, and we think that if they have done, the s117 authorities can’t just refund the rent, minus the housing benefit.

If that were right, it would mean that there was no refund to be made other than for the service charges and THAT would mean that the separate fund that is administered by councils as Housing Benefit was still paying for the accommodation, instead of the council and s117 liable authorities!

That is making the client commit a fraud, it seems to us, since the person does not have a liability to pay the charges, if they are entitled to have housing provided, UNDER s117 – so the triggering criterion for being entitled to HB does not exist.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of London Borough of Lewisham’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-010-781