Decision date: 26/11/19
Miss A was diagnosed with a number of physical and mental conditions including cerebral palsy, a personality disorder and hemiplegia. She also suffered a brain injury at birth. Her mother, Mrs B, complained to the Ombudsman about the care provided to her daughter when she was detained in October 2014 under section 3 of the Mental Health Act 2014 after attempting to commit suicide. Mrs B also complained about the lack of s. 117 aftercare planning and that the Council caused Miss A great distress when it attempted to move her out of her settled, privately funded accommodation.
Following the detention, Miss A spent time in several mental health units and by late 2016 was a patient at a mental health hospital named The Dene. She was allowed periods of leave from The Dene and coped reasonably well during these periods. It was decided by a mental health tribunal that it would be beneficial for Miss A to be discharged from section into a community rehabilitation facility named Cherrywood. Miss A visited Cherrywood and agreed that she would stay once a bed became available. She moved back into her parent’s home whilst awaiting the placement.
Miss A took an overdose in February 2017 but was not sectioned again and returned to her parent’s house. She decided that she no longer wished to move to Cherrywood and upon receiving this information, the Central and North West London NHS Foundation Trust (the Trust) made a referral to its Specialist Therapies Service. Miss A declined the service.
The Council claimed it had not been made aware of Miss A’s discharge from hospital, not had it been involved in any s. 117 discharge planning meeting. Furthermore, it had not received any requests for an adult social assessment until April 2017.
In May, Miss A’s social care worker visited the house to undertake an adult social care assessment, with Miss A’s mother also present. They were given a support budget projection which included direct payments, 14 hours of which were supposed to be spent on agency support for Miss A.
In June, a meeting was held between Miss A’s parents and several professionals from the Council and the Trust to arrange a s. 117 aftercare plan. Miss A did not wish to be present during the assessment but the Council claimed that both of her parents vehemently stated that she did not want support from any secondary mental health services provided by the Trust.
It is not clear who signed or what sort of a contract reflected the next arrangement but in July Miss A’s parents organised for her to stay in a privately funded supported living facility. Within a month there had been an incident where Miss A was aggressive and vandalistic, and said that she had taken another overdose. Her mental capacity was subsequently assessed and it was found that she did have the capacity to make decisions about care and accommodation. Miss A was allowed to remain in the facility.
The Trust told the Ombudsman that Miss A has simply declined care when discharged, but that after a meeting it held with the Council at the end of August, it was agreed that each party would share the cost of funding Miss A’s 14 hours of care a week (no doubt to reflect that a s117 services should have been arranged). But in September, another social care assessment led to the amount of hours of care allocated to Miss A being reduced to only 3 a week.
At this point the Council was funding Miss A’s accommodation at the facility, but the family were paying for 84 hours care for her per week, presumably as a matter of negotiation as to what was needed, with the provider.
The Council claimed that Miss A made it clear in September that she did not want to remain in the facility and that she wished to go home. As this was not on offer, Miss A met with her social worker to discuss other potential options. The options included shared supported living for people with mental health needs and a tenancy with support.
In November, the social worker supported Miss A to meet a housing organisation who agreed to help find accommodation. A suitable property was identified and a tenancy was agreed to begin January 2018. However, several incidents occurred before Miss A was able to move into the placement. She was alleged to have vandalised her own and her neighbour’s flats and to have assaulted staff in December. Then, on January 4th, Miss A set fire to her flat and was arrested and charged with criminal damage and affray. She was found guilty and released on a 12 month community order.
The Council claimed that there was no evidence to suggest that supporting Miss A’s move out of privately funded care had any effect on her behaviour. Mrs B said that it was exactly this that caused her daughter great distress, which ultimately led to her setting fire to her room.
What was found
Whilst the Council claimed that it was unaware of Miss A or her impending discharge in 2016 its social work teams were co-located with the Trust’ and the Trust certainly knew of the possibility of discharge. Mental health assessments and provisions are supposed to be shared between the Council and the Trust under the Care Programme Approach (CPA) and there should be proper information sharing protocol in place to avoid situations like these. It was therefore fault by both the Council and the Trust to not consider Miss A’s potential s. 117 needs together, while she was still in hospital.
No formal s. 117 aftercare plan was ever produced whilst Miss A was sectioned. Even so, the Trust regarded her as needing to be discharged into a community rehabilitation facility. The Ombudsman evidenced this as reason enough to assume that accommodation should have been part of her s. 117 aftercare – ie provided.
After being discharged to her family home it took 6 months before the Trust or the Council undertook a s.117 aftercare assessment at all. Referral for social care assessment was not sufficient as she should have been jointly assessed under the CPA. Both organisations shared the responsibility under the CPA. However, the Ombudsman was unable to state definitively whether:
- Miss A would have accepted any support, as she had refused it in the past
- Her attempted suicide could have been avoided
- The incidents involving Miss A assaulting staff or setting fire to her room later could have been avoided
Regardless, the impact of the lack of s. 117 aftercare was likely detrimental to Miss A’s health. Opportunities to minimise risk were missed directly due to this delay and Miss A and her family had lost faith in the organisations by the time it was eventually completed. Delay getting her an alternative setting once Cherrywood became unavailable were foreseeable and there is no evidence the Trust had a back-up plan in place.
The s. 117 assessment itself was insufficient when completed as Miss A was not present and her parents did not sign it and it was therefore not in line with MHA Code of Practice. The investigator said this:
“Miss A’s lack of engagement in not wanting to be involved in assessments is understandable. The evidence available suggests she experienced increased anxiety when being assessed or dealing with professionals. In a short space of time from December 2016 to September 2017, she had undergone several assessments and been told of referrals to various teams. Historically, Miss A had negative experiences with some of these teams, so it is understandable she did not want to engage. Her parents were also frustrated with what was happening. Had the organisations assessed her properly under the CPA this would have alleviated the need for several assessments and her needs would have been considered holistically.”
The Ombudsman found no fault in the social care assessment, when was eventually carried out in May. The amount of care set out in the assessment was therefore not appropriate for investigation. The subsequent assessment in September was also completed appropriately but the investigator did not say the same thing.
The Council and the Trust both were responsible for the rehabilitation and sourcing of accommodation for Miss A. Mrs B felt she had no other option but to arrange a supported living placement for her daughter due to the lack of planning from both organisations. The Council and Trust should have funded the supported living care fees. This was fault which lead to injustice as Mrs B was left out of pocket for the care.
The Ombudsman found no fault with the social worker’s support of Miss A’s desires to live more independently and no fault with the Council’s subsequent actions. Miss A had capacity and there was no tie found to the events that resulted in her being jailed between January and June 2018.
The CCG and Council together are responsible for providing s. 117 aftercare. With that in mind, the Ombudsman recommended that the Council, Trust and the CCG:
By December 23rd:
- Refund Mrs B for the cost of the supported living service fees she’d paid for and apologise for not having done so already – the sum of £23,000, which appears to have been the amount spent on care and support
- Apologise to both Miss A and Mrs B for the lack of a s. 117 aftercare plan and for the uncertainty that it brought about.
- Pay Miss A £1500 and Mrs B £1000 in recognition of these injustices
By February 20th:
Provide a plan of action of how this sort of situation could be avoided in the future. This will include how to notify and cooperate with each other about assessments and discharges.
Points for councils and NHS mental health trusts – and service users, families, people awaiting s117 care plans, people in ATUs, advocates, lawyers etc
This is a shocking case of disregard of the rule of law, albeit things are always harder with a person with a personality disorder and fluctuating capacity and strong drives. It makes our CEO wonder what on earth she was doing giving of her time voluntarily to attend the s117 discussion group working as part of the review of the Mental Health Review. The LGSCO’s investigation doesn’t probe very deeply into the aspects that would assist with legal analysis either. One would have to ask what use is law, and therefore considering changing it, if nobody abides by it and nobody thinks it matters? One would also have thought that a sum of money of the size of £23000 having to be reimbursed would have been newsworthy to the wider public and NHS management and council leadership, but it seems not.
The LGO report asserts that the following legal principles emerge from s117 of the Mental Health Act: we agree other than where we have commented in bold
- “Accommodation can generally only be part of section 117 aftercare if:
- the need is for enhanced specialised accommodation (“accommodation plus”); [accommodation of an overall nature required in order to make the care services feasibly able to achieve the statutory purpose]
- the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); [this is no longer a safe statement of the law after the amendments to the MHA in the Care Act – see the Hansard debates which likely broadened the interpretation so as to cover any mental health condition] and
- the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder. [ie the statutory purpose of aftercare now]
- When accommodation is part of a person’s section 117 aftercare, it must be free to the person. [yes, when it is, but that does not include when a person chooses to take a tenancy to meet their own needs – they just need to know that they can, and are not limited to going where the council/trust s117 teams point to, which will only be places where services are already in situ and involve shared care] Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.” [agreed – but the LGO has excused councils from paying that element of local government money back, ironically, as if it is all part of one pot alongside s117 funding!!]
It’s not clear here whether the parents merely paid for the services at the point of their daughter moving in, or for the services and an occupation licence, or whether they or Miss A signed a tenancy with a landlord and for the private company to provide support to Miss A.
If the whole package came through one contract, and the services constituted care, as opposed to support, it would have been a registrable care home.
Someone with a personality disorder probably needs prompting together with supervision regarding personal care and thus care, not merely support, but the LGSCO’s investigator does not explore that problem. It’s not clear even who paid for the accommodation costs in the private supported living setting. We are told that it was not the parents; and it was not the council and trust, so it must have been Miss A through Housing Benefit, we think. That tenancy was no doubt separate, on paper, from any contract for care, which is perhaps the answer to this registration conundrum.
It’s not clear either whether the reduction in support from 14 hours a week to three was on account of a lessening of need or because a resource allocation system had been scored differently to before, or simply on account of cuts. S117 care planning is needs led just like social care – not budget driven, in legal terms.
Anyone reading this report with a relative awaiting discharge needs to get legal aid for the person to get judicial review of the s117 planning function, if housing is not considered, no decision is made about the integral significance of the nature of the housing for the delivery of the statutory aftercare purpose; if the planning team even hints that the only option is a tenancy in an existing setting where services are shared, or if no competent assistance to apply as homeless to the housing authority is on offer. Those are the preliminary points that need to be PUT forcefully by anyone attending a discharge planning meeting, so that this sort of thing never happens again.
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The full Local Government Ombudsman report on the actions of Milton Keynes Council can be found here: