Solihull Metropolitan Borough Council at fault for failing to consider a person’s needs under s117

Decision Date: 26th November 2020

What Happened

Mrs A complained on behalf of her mother, Mrs B.

In 2016, Mrs B was discharged from hospital under s.3 Mental Health Act 1983 (MHA) to Care Home A.

In 2019 Care Home A alerted Mrs A to the fact that Mrs B’s needs had increased, including relating to her mental health.

As a result, the Council agreed with Care Home A to increase its funding to £700 a week, and Mrs A paid a ‘voluntary’ £35 top up each week, as she wanted to ensure her mother had proper support.

In 2020 Mrs A contacted the LGO as she was concerned about the quality of care Mrs B was receiving. She felt that the Council should increase the funding to £850. She also highlighted to the LGO that Mrs B was still under s.117 MHA, so should have her care funded.

During its investigations, the Council told the LGO that Mrs B was eligible for s.117 aftercare, however, she did not have any health needs that needed to be funded under the legislation. It stated that it would be happy to carry out a joint assessment with the CCG.

The Council completed a CHC Checklist for Mrs B, which determined Mrs B did not meet the threshold for a full assessment for CHC.

When the Council learned that Mrs A was paying a voluntary top up of £35, it increased its funding to £735.

The Council also told the LGO that it was developing a joint s.117 policy with the CCG and will incorporate some of the recommendations from guidance produced by the Association of Directors of Adult Social Care (ADASS) into developing this policy.

What was found

The Council had no evidence that it followed the proper process under s117. The guidelines require the clear identification of a named individual who has responsibility for co-ordinating the preparation, implementation and evaluation of the CPA care plan. The CCG told the LGO that it had no record of Mrs B’s s.117 or any assessment. This was fault.

The guidance produced by the Association of Directors of Adult Social Care (ADASS) requires that a person must have a plan which is clearly documented, includes the needs that arise from the mental disorder, the services required to meet those needs, and a timescale for all of this. The plan should also identify whether the need is a health need, social care need, or a joint need which should be met under s117.

The LGO stated that there was no evidence that such a plan was being drawn up. This was fault. The Council and CCG failed to appoint a care co-ordinator, therefore the fault was on behalf of them both.

As a result, Mrs B’s needs under s117 were not assessed, and therefore possibly not met. This is fault.

The LGO recommended that:

  • The Council and CCG apologise to Mrs A.
  • Carry out a s117 assessment and ensure the outcomes are properly communicated to Mrs A.
  • Continue with the joint review of the s117 process

Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public

Both the Council and Clinical Commissioning Group (CCG) were subject to the LGO’s scrutiny as this complaint related to their responsibilities regarding aftercare services under s.117 MHA, the one truly joint duty in the legal framework.

There is a duty on both parties to provide or arrange free aftercare services that will prevent and reduce the risk of readmission for the person as a result of their mental disorder. It can be jointly funded in shares for internal finalisation, and cross subsidy is acceptable. So whoever buys which bit, the plan has to be drawn up, and should identify which elements of the subsequent care and support the plan is supposed to cover. Anything else provided for an ordinary social care purpose would be chargeable under the Care Act. 

In this instance, the assessment and support planning that should have taken place should have been overseen by a care-co-ordinator and clearly identified how Mrs B’s needs would be met. Instead, Mrs B’s daughter was unclear and anxious to a point of needing medical input because she was so worried about her mother’s care.

Care planning for s117 aftercare should be done via the Care Programme Approach (CPA) framework (paragraph 45 of Annex A to the Care and Support Statutory Guidance and paragraph 33.14 of the MHA Code of Practice).

The Council and CCG were reviewing the way in which they managed s.117 cases together. This really was a too little, too late scenario for Mrs B and Mrs A. It appears that Mrs B may well have required nursing care but was moved into a residential care home that struggled to meet her needs. The lack of care plan clarity meant that Mrs A and presumably the care home were unclear as to what needs were being met and in what way. Mrs A rightly expressed concern in her complaint that her mother’s needs may not have been being met because of a shortfall in funding.  This could clearly have been resolved much sooner had the agencies agreed a clear policy sooner, rather than Mrs A having to complain to seek a resolve to the matter.

Many authorities with s117 responsibilities have come to policy decisions that mean an ‘agreed split’ is pre-determined to make this easier and less time consuming. In this situation however, it appears Mrs B was not really treated as having an entitlement to s.117 aftercare services. It seems as though this was an ‘afterthought’.

The Council and CCG both responded to the LGO recommendations and have apologised and offered the required explanation to Mrs A about her mother’s care. The MHA is not a new piece of legislation; it is almost 30 years old, so it is surprising that councils are still getting this everyday aspect of discharging statutory functions, so wrong.

It is worth noting that Solihull has been scrutinised by the LGO in another s117 case in the last 2 years, regarding the use of s117 to cover the full accommodation cost outside of a care home when specialist accommodation is needed, so that one might infer that progress is only being made very, very slowly.

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The full Local Government Ombudsman report of Solihull Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-018-843

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