Funding disputes and section 117 aftercare: Lessons from the Ombudsman

Two recent Local Government and Social Care Ombudsman decisions highlight important learning points for Integrated Care Boards (ICBs) concerning managing a funding dispute and section 117 aftercare.

This article explores both cases and the Ombudsman’s findings.

Hampshire case 

Hampshire County Council and Hampshire and Isle of Wight ICB were found to be at fault for failing to manage a funding dispute adequately. This caused an avoidable delay in Mrs X’s discharge from hospital. A root cause was a failure to have a local dispute process.

Case summary

Mrs X had been diagnosed with a genetic, progressive neurodegenerative disorder which was causing her to lose the ability to walk or move independently. It also affected her ability to communicate and caused a loss of sensation in her arms and legs. At night, Mrs X often experienced leg spasms, cramping and clonus. These caused Mrs X a lot of pain and meant she could not sleep.

Mrs X was admitted to hospital in late-April 2023. Mr X said that early in Mrs X’s admission her night time needs became the most problematic issue and it “became obvious to all those involved…that nights were exceedingly difficult for [Mrs X].”

Aside from a short stay in a rehabilitation centre, Mrs X remained in hospital until the end of July 2023. Mrs X moved to a nursing home from hospital. Mrs X had wanted to return home but professionals had concerns about whether that would be sustainable. The plan was to assess Mrs X’s needs in the nursing home, outside of an acute hospital.

In October 2023, a multi-disciplinary team (MDT) completed a Decision Support Tool (DST) to assess Mrs X’s eligibility for Continuing Healthcare (CHC). The MDT gave its view that Mrs X had a primary health need. The ICB rejected the recommendation and concluded that Mrs X did not have a primary health need and was not eligible for CHC.

The Council appealed the CHC panel’s decision, beginning a dispute.

Several days later Mrs X returned to hospital. Six days after Mrs X’s admission medical staff decided she was “medically optimised” and could leave hospital. The dispute between the Council and the ICB over responsibility for arranging Mrs X’s care in the community continued.

Mrs X returned home in mid-December 2023, 45 days after medical staff found she was stable enough to leave hospital.

At the end of March an MDT assessed Mrs X’s eligibility for CHC. The MDT concluded Mrs X had a primary health need and, as such, was eligible for CHC. The ICB did not accept the MDT’s recommendation and asked it to reconvene. The MDT reconvened in early April 2024. This time the MDT concluded that Mrs X did not have a primary health need and, therefore, was not eligible for CHC. The ICB told Mr X and the Council of its decision and said it would stop funding Mrs X’s night-time support later that month (on 17 April). It told Mr X that the Council would then be responsible for meeting all of Mrs X’s needs.  

Mr X appealed the CHC eligibility decision in May 2024.

The Council and the ICB continued to exchange correspondence about Mrs X’s needs. The Council accepted that Mrs X was not eligible for CHC but maintained its view that she had needs at night which were health needs and could only be met by the ICB.

At the end of August 2024, the Council agreed to fund waking-night support for Mrs X. It agreed to fund this on a “without prejudice” basis while it continued to negotiate with the ICB.

At the end of November 2024 Mrs X broke her leg at home. She was admitted to hospital and clinicians decided to treat her palliatively. Mrs X sadly died in early December 2024.

The Ombudsman observed

There is evidence of a significant amount of contact between the Council and the ICB during November 2023, with both organisations aware of the need to resolve the dispute and find a way forward. Nevertheless, it took 24 days to reach an agreement to use the Discharge to Assess process and for the ICB to fund the night-time element of Mrs X’s care. This was too long and is fault.

The Council acknowledged that “frequent escalation could have benefited from a formalised approach to reach earlier resolution”. I agree that a formal, local dispute process would have been beneficial. The lack of an agreement on funding during a dispute (as highlighted in the National Framework, referenced at paragraph 23) was particularly unhelpful.

Overall, there was a period of just over three weeks when Mrs X’s discharge from hospital did not progress because of fault. This related to a funding dispute where there was no prior agreement about interim funding during disputes and no formal escalation points. Because of this fault Mrs X remained an inpatient for longer than necessary. This was a busy environment where she appears to have been cared for in bed for significant periods. Mr X explained this was mentally and physically hard for Mrs X, and for him in having to witness it. I cannot say that this three-week delay is likely, on its own, to have caused an avoidable deterioration in Mrs X’s health. However, the discomfort of being in hospital and the stress of the situation were injustices to Mrs X and to Mr X. I have made a recommendation to address this.

It is evident that the Council considered the specifics of Mrs X’s needs at night. It used information from its own assessments (taken, in turn, from interactions with and information from Mrs X and Mr X). It also used information from other professionals. It then compared its understanding of Mrs X’s needs to relevant legislation and guidance. It did this before making its judgment that it did not have the legal authority to provide support to manage Mrs X’s needs at night. This was an appropriate process, followed without fault. As such, the Council was entitled to make its own professional judgement.

The ICB said it recognised that Mrs X did have health needs. However, it said that it considered that those needs were appropriately managed by Mrs X’s GP, district nursing services and other community professionals. Ultimately, it was for the ICB to make its own decision about the extent of Mrs X’s needs at night, and whether they required individually commissioned support. That the ICB reached a different conclusion about this from Mr X and from the Council is not, in and of itself, evidence of fault.

There is evidence to show that, through the CHC process and via separate work, the ICB had built a reasonable understanding of the nature and extent of Mrs X’s needs at night. There is evidence that it applied this information to its own internal eligibility criteria for stand-alone health needs. Therefore, as the ICB followed an appropriate process, it was entitled to make its own professional judgement. Because of this, I have not found evidence of fault in the ICB’s actions.

Comment

We are sure this kind of chronology will sound very familiar to readers.

Richmond upon Thames

London Borough of Richmond Upon Thames (but not NHS South West London ICB) was found to be at fault for failing to pay rent for specialist accommodation, despite it being part of section 117 aftercare needs.

Case summary

Following a lengthy mental health admission under section 3 of the Mental Health Act 1983 (the MHA), Miss X moved to a supported living placement (the Placement) in the spring of 2024. Miss X was 17 at the time and turned 18 a month later.

Miss X became eligible for aftercare under section 117 of the MHA when she left hospital. The London Borough of Richmond upon Thames (the Council) and NHS South West London Integrated Care Board were responsible for ensuring Miss X receives appropriate aftercare.

Mr Y, Miss X’s father, complained that, prior to Miss X’s transfer from hospital, the Council and the ICB failed to agree how they would fund the placement when Miss X became an adult. Mr Y said this was despite plans for the placement to be a long-term one, and despite Miss X’s eligibility for section 117 aftercare. Further, Mr Y complains that, after Miss X turned 18, no one took any action to ensure the placement was properly funded.

Mr Y said that, as a result, no one paid anything toward the costs of Miss X’s rent, bills or care from the date of her 18th birthday. By the time of his complaint to the Ombudsmen, in December 2024, this remained the case. Mr Y said this, in turn, led the placement to:

• Ask Miss X to pay over £10,000 in arrears.
• Sign a tenancy agreement which she would not be able to afford.
• Threaten to terminate Miss X’s placement.

Mr Y said these events caused him tremendous stress. Also, Mr Y said that if Miss X was evicted it would be detrimental to her mental health and could potentially risk her life.

Further, Mr Y complained the Council did not respond adequately to his complaints. He said this led him to hire a solicitor to liaise with the Council. Mr Y said this, in turn, put financial pressures on his family.

The Ombudsman observed

• In its response to enquiries, the Council said the Ombudsman does not have a section 117 aftercare plan for Miss X. The ICB also acknowledged the “lack of a clear s117 Plan”. This is fault. “...each s117 aftercare plan should be bespoke and should be based on a comprehensive, robust assessment of the totality of the person’s needs. Such an assessment did not happen in Miss X’s case. Because of this we are left with an incomplete understanding of what professionals considered Miss X needed because of her mental health condition and to prevent her readmission to hospital.”
• Despite all the concerns and discussions about the high costs of the placement, no one suggested a viable alternative. This suggests that there was a feature of the placement which made it necessary because of Miss X’s mental disorder and which would help prevent her readmission.
• We remain of the view that the full cost of Miss X’s accommodation should have been met through section 117, free of charge to Miss X. Section 117 places a joint duty on the Council and the ICB to do so.
• The decisions: not to include Miss X’s rent and associated accommodation costs in her s117 package; and, not to pay her rent (and associated costs) from May 2024 are both fault. Because of the local arrangements, the fault here lies with the Council. It completed the costed care plan which the joint panel approved, and it was responsible for paying fees and re-charging the ICB.
• Further, the Council’s decision to make Miss X liable for the cost of the rent is fault. This is contrary to the legislation on section 117 aftercare and contrary to our guidance about it. Namely, that where a person is eligible to receive a form of support through section 117, including specialist accommodation, the local authority and the ICB have a responsibility to provide that support free of charge. They cannot charge for it. We consider this applies to any service charges/additional costs that are a compulsory condition of the tenancy. We do not consider there is anything in the legislation, guidance or case law which would justify a local authority or ICB asking a person to fund (or partly fund) a service they are entitled to receive through section 117. This is regardless of whether the person has access to a private income or whether they are entitled to claim any state benefits. That is not to say that health and social care organisations cannot support and encourage section 117 eligible people to apply for and use other benefits (and pay other bills) as part of their defined recovery plan. Agencies involved in section 117 aftercare have discretion to promote a person's independence in ways that are appropriate for that individual. However, this does not change or override the organisations’ responsibilities to provide section 117-eligible services free of charge.

Comment

117 aftercare is always a tricky area, particularly where accommodation is concerned so there are some points to digest from this decision.
In both cases, the sum of £250 was awarded to the parent concerned in addition to other agreed actions.

Our content explained