The Ombudsman's final decision
Summary: Mrs X complains the Council failed to provide enough support for her under s117 of the Mental Health Act. We will not investigate the complaint because it is late and we have not found a good reason to put that aside and investigate it now.
The complaint
Mrs X complains that Northumberland County Council (the Council) failed to provide her with adequate support under section 117 of the Mental Health Act 1983 (the MHA) after she left hospital in July 2019. Mrs X said the Council incorrectly told her, in 2019, that she was not entitled to support for household tasks, personal care and social and cultural support. Mrs X also complains that the six hours of support agreed in 2022 was not enough for her needs.
Mrs X said that, as a result, she missed out on necessary support she was entitled to from July 2019 until November 2023, when over 20 hours of support a week were put in place.
The responsibility to provide support under s117 of the MHA is a joint health and social care one. For this reason we have also included NHS North East and North Cumbria Integrated Care Board (the ICB) in our consideration of this case.
The Ombudsmen’s role and powers The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended). The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services (Health Service Commissioners Act 1993, section 3(1)).
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe: it is unlikely we could add to any previous investigation by the bodies, or we cannot achieve the outcome someone wants.
(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered the written information Mrs X and her husband, Mr X, provided. I spoke to Mrs X and Mr X on the phone. I considered papers the Council provided to us.
I considered LGSCO’s Assessment Code.
I shared a confidential draft copy of my provisional decision with Mrs X and Mr X and invited their comments on it. I considered Mrs X and Mr X’s response.
What I found
Mrs X was detained under the MHA in 2019. She returned home in July 2019. The Council agreed to provide six hours of support a week, to be funded through s117 aftercare. The support was to help with social inclusion. S117 of the MHA requires councils and ICBs to provide free aftercare services to certain people. This includes people, such as Mrs X who have been discharged from detention in hospital.
The Council reviewed Mrs X’s care plan in early 2022. The support remained at six hours a week, but the plan noted it was to there to help with household tasks, social stimulation and personal care.
In late 2023, following a review of Mrs X’s needs and circumstances, the Council increased Mrs X’s support plan to over 20 hours a week. Four hours were allocated for help with household tasks.
In November 2022 Mr X complained to the Council about the level of s117 aftercare it had provided for Mrs X since 2019, including the support arranged since early 2022. In February 2023 solicitors acting on behalf of Mrs X wrote to the Council with a similar complaint.
The Council replied to Mr X in March 2023. It’s response focused on concerns about how Mrs X’s care had been delivered in 2022. At the end of the letter the Council advised how Mr X could escalate his complaint and provided details for the LGSCO.
Mr X made a follow-up complaint to the Council in December 2023. The Council replied in March 2024 and acknowledged that it had given Mrs X incorrect information and advice in 2019. In April 2024 it wrote to Mrs X and said that if she or Mr X paid for any private housework between July 2019 and January 2022 it would reimburse those costs, if they could provide evidence of what they paid.
The Council said it could not say what support it would have put in place for Mrs X in 2019 without the fault. However, the Council said it would pay Mrs X and Mr X £500 each for the impact of the incorrect advice it provided, and £500 each for the time and trouble they were caused in pursuing their complaint.
As noted in paragraph six, complaints should be brought to the Ombudsmen within 12 months of the person becoming aware of their concerns. It is evident that Mrs X and Mr X were aware of their concerns about the adequacy of Mrs X’s s117 support by November 2022 at the latest. This is more than 12 months before their complaint to the Ombudsmen, so the complaint is late.
In the follow-up complaint to the Council of 26 December 2023 Mr X said they had not complained in 2019, 2020 or 2021 “because [Mrs X] was unaware that S117 was free and [Mrs X] believed [her] Social Worker…that [Mrs X] would [be] required to pay for domiciliary services aftercare”.
In the complaint to LGSCO Mrs X said she did not become aware she may have been eligible for more free aftercare until November 2023, when her care plan increased.
However, Mrs X and Mrs X could have escalated their concerns and come to the Ombudsmen sooner. Around eight months passed between the Council’s complaint response in March 2023 and Mr X’s follow-up complaint in December 2023.
In deciding whether to set the time limit aside, we also need to consider whether it would be worthwhile to do so, and whether our involvement could lead to a fair, meaningful and helpful intervention. In this case the Council has already accepted there was fault and has offered a remedy which is in line with the Ombudsmen’s approach to putting things right. The Ombudsmen would be very unlikely to offer any greater financial payments, or for the reimbursement of the costs of legal services Mrs X and Mr X chose to obtain. Mrs X and Mr X have confirmed that they decided to accept the Council’s offer.
Decision I have closed this case on the basis that the complaint has been made late and there is no reason to set the time limit aside.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman