Luke Clements

s117 MHA 1983 and ‘entrenched indifference’

A good colleague has summarised three ombudsman reports concerning the alarming failures by the key health and social care bodies in Peterborough with responsibility for providing support for a disabled person under section 117 Mental Health Act (MHA) 1983.  It details:

• the inability of public bodies to work together – even when their failings have been identified by the ombudsman;
• how overly restrictive local policies are applied, contradicting national best practice guidance (which makes repeated mention that ‘bureaucracy’ should not ‘get in the way’ of good practice[1]);
• the lack of accountability: the absence of any seriously dissuasive penalties for bad institutional behaviour of this kind; and
• the human cost of these protracted failings – the trauma that is caused by institutional systems.

After the ombudsman first identified the harm experienced by the carer and the disabled person, its continuation cannot be described as ‘unintended’.  Social harm theorists have referred to behaviour of this kind as moral ‘indifference’: arguing that ‘indifference rather than intent may well be the greater cause of avoidable human suffering harm.[2]

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Repeated S117 Aftercare Failures in Peterborough – 3 Ombudsman Complaints Upheld

Background

Under Section 117 of the Mental Health Act 1983 (MHA), local authorities and NHS bodies have a joint duty to provide free aftercare services to patients discharged from hospital after certain mental health detentions (typically under section 3 MHA). A key element of aftercare is a care coordinator to oversee the care plan and ensure regular reviews of the person’s needs. In an alarming case from Peterborough, one family had to bring three separate complaints to the Ombudsman – all upheld – because the responsible organisations repeatedly failed to fulfil these legal duties. This article recounts the Ombudsman’s decisions (reference numbers 21 003 925, 23 002 112, and 24 005 859) and analyses the serious failings by Peterborough City Council, Cambridgeshire & Peterborough NHS Foundation Trust, and NHS Cambridgeshire & Peterborough Integrated Care Board.

 

First Ombudsman Decision (May 2022, Ref 21 003 925)

The first complaint, decided in May 2022, concerned a man (Mr Q) who was entitled to Section 117 aftercare following discharge from a mental health hospital. His father (Mr P) complained that the Trust, Council and CCG (predecessor of the ICB) failed to arrange the required aftercare review meetings and did not allocate a new care coordinator after Mr Q’s discharge. As a result, when Mr Q’s existing care arrangements broke down in 2019, there were delays in arranging new care – placing Mr Q at risk and causing distress and inconvenience to both father and son.

The Ombudsman found multiple faults. In its final decision summary, the Ombudsman noted that the Trust “did not allocate Mr Q a new care coordinator, did not conduct a S117 review or formally discharge him, and it was not clear with Mr P during the complaints process.” Meanwhile, the Council “did not understand the care package it was providing to Mr Q,” leading to confusion for the family. These failures amounted to a “shared failure” to provide the aftercare services Mr Q was entitled to. The Ombudsman recommended that the organisations apologise and make service improvements to prevent a recurrence. At this stage, the remedy focused on acknowledgment and fixing procedures; the family simply wanted regular S117 reviews to ensure Mr Q’s needs were met.

 

Second Ombudsman Decision (Nov 2023, Ref 23 002 112)

Tragically, the May 2022 recommendations were not followed. Mr Q still did not receive a Section 117 review after the first investigation. By 2023, Mr Q had not had any S117 aftercare review since 2019, and no consistent care coordinator was appointed. Mr P (now referred to as Mr X) was forced to return to the Ombudsman. In November 2023, the Ombudsman again upheld the complaint, finding ongoing failure by the Council, Trust and the new ICB to implement the previous recommendations. The summary of this second decision explicitly states: “We found fault by a Council, Trust and ICB as they failed to arrange a Section 117 review meeting for Mr Y”, noting that this should have occurred as “recommended by the Ombudsmen in May 2022.” As a result, Mr Y’s care needs had “not been properly and holistically considered.”

The Ombudsman’s Agreed Actions in 2023 required the organisations to finally hold a Section 117 aftercare review and to apologise for the delay. Significantly, the Ombudsman also directed each of the three bodies to make a symbolic financial payment to acknowledge the injustice. Each was to pay £100 to Mr X (father) “in recognition of the inconvenience caused to him as he was required to chase repeatedly for a meeting,” and £100 each to Mr Y (son) for the frustration caused by the lack of review. The decision also ordered that a care coordinator be appointed and a care plan review meeting take place within two months. The findings were clear that the Council, Trust and ICB collectively shared responsibility for the continuing failure to arrange the S117 review.

Despite these strong words and remedies, events after November 2023 showed that even an upheld Ombudsman complaint was not enough to spur timely compliance.

Third Ombudsman Decision (Feb 2025, Ref 24 005 859)

By August 2024 – nearly two years after the first Ombudsman ruling – Mr Y still did not have a dedicated care coordinator overseeing his aftercare. Mr X filed yet another complaint. In February 2025, the Ombudsman upheld a third complaint against the Council, Trust and ICB, again finding they had failed to meet their joint obligations. The final decision summary concludes:

We have found fault by an NHS Trust, a Council and an NHS ICB for not allocating a care coordinator to someone who is entitled to one. The situation has caused avoidable uncertainty and distress.

This persistent failure occurred despite two previous upheld complaints. The Ombudsman noted bluntly, “the organisations have failed to adhere to the Ombudsmen’s last recommendation. Mr Y remains without a care coordinator. He should have one.”

In its report, the Ombudsman recounted the tortuous efforts (and excuses) between November 2023 and August 2024. A Section 117 review meeting was finally arranged in late 2023, and because no one had been assigned as care coordinator, Mr Y’s out-of-area consultant psychiatrist (responsible clinician) stepped in to act as a temporary care coordinator for the meeting. The records show behind-the-scenes discussions where each body tried to deflect responsibility for providing a coordinator:

• The Council argued it could not assign one of its social workers because the local policy required the care coordinator to be a health professional, and besides, a council social worker wouldn’t have access to the NHS mental health record system. (As discussed below, this policy itself was criticised by the Ombudsman.)
• The NHS Trust claimed it could not allocate anyone because Mr Y was not currently under its secondary mental health services (having disengaged from them), so providing a care coordinator was “outside of its contracted services.” In other words, if a patient isn’t actively under a community mental health team, the Trust’s view was that it had no obligation to provide care coordination.
• The ICB (which commissions services) suggested as a stop-gap that perhaps an ICB-employed nurse could act as Mr Y’s coordinator, but this idea fell through due to “capacity” issues in that team.

This impasse resulted in only ad-hoc solutions. After the first belated S117 review meeting (where the external doctor temporarily coordinated), the agencies agreed Mr Y remained eligible for aftercare and identified some support (e.g. talking therapy) he could benefit from. The ICB said it would try to assign a nurse temporarily until a new policy could clarify roles. By the end of January 2024, the ICB informed the Council that the Trust “would offer a care coordination service for people eligible for S117 who also have a learning disability, including Mr Y.” This suggested a possible resolution, and indeed the Trust arranged some clinical support (a psychologist and art therapist) for Mr Y by March 2024. However, none of these steps actually secured a permanent care coordinator. Internal emails revealed continuing disagreement and silo thinking – the Trust maintained Mr Y didn’t meet criteria for their mental health teams (since he refuses medication and treatment linked to a traumatic past experience with the service). The Trust even stated it did “not recognise” the ICB’s understanding that a coordinator would be provided, flatly saying in July 2024 that it had not been able to do so. By August 2024, Mr Y was still without a named coordinator – exactly what the Ombudsman had ordered to be fixed by early 2024.

Crucially, the Ombudsman’s investigation in 2025 uncovered that systemic flaws were at the heart of this failure. It highlighted two main issues:

• Overly restrictive local policy: The joint policy on Section 117 aftercare in this area needlessly limited the role of care coordinator to a “health care provider,” whereas national guidance does not impose such a restriction. In fact, the Code of Practice and good practice guidance allow for social workers or other appropriate professionals to act as care coordinators. The Ombudsman found it was fault for the Council/Trust/ICB to have designed a policy that “leaves it open for social workers to take on the role” but then prohibits them, calling the policy “overly restrictive.” All three organisations were responsible for this policy failure, which foreclosed an obvious solution – “If this were not the case there would have been an option of allocating a social worker to act as Mr Y’s care coordinator.” The Council’s excuse about record access did not remove the fact that their own policy tied everyone’s hands unnecessarily In essence, the bodies wrote their policy in a way that created a barrier to providing the service Mr Y needed. The Ombudsman noted this contradicts national best practice, which emphasises that having a care coordinator is “a key component of successful care planning.”
• Gaps in commissioning and service criteria: Because Mr Y was not receiving treatment from the Trust’s secondary mental health services, the ICB had not commissioned any “standalone” care coordination service for someone in his situation. This left a cohort of patients (those still entitled to aftercare but not open to a community mental health team) in a service gap – no team was funded to coordinate their care. The Trust argued it couldn’t add Mr Y to any care coordinator’s caseload without a commissioned service or him meeting clinical thresholds (which he didn’t, due to not engaging in medical treatment). The Ombudsman described this as bureaucratic inertia: “Mr Y has been left in a position where the wording of inter-agency policies and procedures are preventing him from getting an aspect of support he is entitled to… the type of bureaucratic barriers [that] the [NHS] Framework highlighted.” In other words, administrative rules and inter-agency buck-passing had trumped the statutory duty to meet Mr Y’s needs.

The 2025 decision went further than prior ones in its remedies. The Ombudsman again ordered apologies to the family and token payments (£200 from each body to both Mr X and Mr Y) for the “avoidable uncertainty” they had been caused. More importantly, it required the three organisations not just to finally “ensure a care coordinator is appointed for Mr Y” (even if that meant thinking outside normal service structures), but also to come up with an action plan to fix the wider policy and commissioning issues that led to this situation. The Council was instructed to involve its elected scrutiny committee to monitor progress and learn lessons about joint working. The ICB was told to alert NHS England about this case as an example of a system gap, and to send its action plan to NHS oversight authorities. These steps hint at the seriousness of the failings – essentially, it took three investigations for the bodies to even begin addressing what should have been obvious obligations under the law.

 

Impact on the Family Carer

The human cost of these protracted failings cannot be overstated. Mr X (the father and carer) spent years battling authorities for the aftercare his son was legally entitled to. He had to navigate three rounds of complaints and investigations – an exhausting process for any family. The Ombudsman recognised the “inconvenience”, “frustration” and distress caused to both father and son in having to chase what should have been provided as a matter of course. In the second investigation, the Ombudsman explicitly acknowledged that Mr X was “required to chase repeatedly” for a care review meeting. The token financial remedies (totalling £900 across the three bodies over two complaints) are a small recognition of the injustice and stress endured. Mr X reported feeling that his son’s welfare was “passed around” with no one taking ownership, while he was left to coordinate and push for answers. Over the period from 2019 to 2024, this caused immense strain on the family, who feared Mr Y was “losing out on support which would have been beneficial.” It is notable that Mr Y himself, a person with severe mental health and developmental disabilities, also experienced frustration and uncertainty – precisely the outcomes Section 117 aftercare is supposed to prevent.

 

Legal and Ethical Failures

This case highlights a disturbing breach of the legal duties and ethical responsibilities of the Council, Trust, and ICB. Section 117 MHA imposes an ongoing duty on both local authorities and health services to meet a discharged patient’s aftercare needs related to their mental health condition. The law is clear that this is a joint responsibility – agencies must work together to plan and provide necessary support (which can include accommodation, social care, health services, therapy, etc.) to reduce the risk of relapse or readmission. Care coordination is at the heart of the aftercare duty. The Care Programme Approach (CPA) framework and the MHA Code of Practice expect that every patient on Section 117 aftercare has a named coordinator to organise regular reviews of the care plan and ensure services are delivered in a coordinated way.

In Peterborough’s case, the Ombudsman decisions make plain that these bodies failed to cooperate and act competently in delivering even the most basic aspect of aftercare – arranging a meeting and assigning a lead professional. The Trust and Council had a statutory obligation to put aside any inter-agency disputes and make sure Mr Y had appropriate aftercare. Ethically, one would expect public bodies to prioritise a vulnerable individual’s needs over bureaucratic formalities. Instead, as the Ombudsman noted, Mr Y fell into a “gap in provision” of their own making. The Council tried to stick to a policy that absolved its social workers from coordinating mental health aftercare, while the NHS Trust washed its hands of someone not actively under its treatment. This silo mentality and lack of flexibility are fundamentally at odds with the spirit of Section 117, which is about seamless support and continuity of care. It also indicates competence failures in leadership: even after being named and shamed once, the organisations failed to establish clear protocols to comply with the Ombudsman’s recommendations – a lapse that can only be described as institutional indifference or inertia.

Crucially, the Ombudsman’s third report points out that nothing in law prevented creative solutions. It emphasises that Section 117’s definition of aftercare “is very loosely defined” and gives commissioners “considerable scope to act creatively” in arranging services to keep someone well in the community. The agencies could have, for instance, commissioned an external care coordinator or agreed on a bespoke funding arrangement outside the usual service criterial. The fact that they “had not considered or discussed” any such solution is, as the Ombudsman said, fault. By failing to explore all avenues to meet their duty, the Council, Trust, and ICB not only broke the letter of the law but also breached the ethical imperative to do no harm and to support those in their care.

 

Ombudsman’s Limited Powers and the Need for Accountability

This saga also underscores the limitations of the Ombudsman’s powers in the face of entrenched indifference. The Local Government & Social Care Ombudsman (and the parallel Parliamentary and Health Service Ombudsman) can investigate and make findings, but they cannot directly enforce their recommendations beyond moral and reputational pressure. In this case, the Ombudsman issued scathing findings and clear action plans – yet it took three rounds of “naming and shaming” to prompt the bodies to even start addressing the problems. After the first decision in 2022, the Council, Trust, and ICB gave assurances but did little. After the second decision in late 2023 (which came with public exposure and a modest financial penalty), they made some gestures (holding one meeting, offering apologies, planning a policy review) but still failed to deliver the core outcome (appointing a coordinator). It was only by the third investigation that more robust measures – involving oversight by a Council scrutiny committee and NHS England – were triggered.

The pattern here is unfortunately illustrative of a larger issue: ombudsman remedies rely on the goodwill and responsiveness of authorities, and when those authorities are slow or unmotivated, individuals can continue to suffer injustice. The Ombudsman can recommend compensation and highlight faults, but cannot compel an organisation to change its policy overnight or allocate resources. In Mr Y’s case, each delay meant another formal complaint and many months passing. This is deeply frustrating for families and erodes trust in public services. One might ask, what if the family had not been persistent or aware of their rights? The failures might have continued indefinitely. It should not require multiple damning reports for public bodies to follow the law.

The Ombudsman in the 2025 report seems cognisant of this weakness – hence the effort to involve external oversight and require follow-up on policy changes. The report effectively puts Peterborough City Council, the NHS Trust and the ICB on notice that their “bureaucratic barriers” must be dismantled to avoid harming others in similar situations. However, it’s telling that even the strongest remedy here is still essentially a plan and a promise. In practice, real accountability may only come if these organisations face scrutiny from regulators or potential legal action (judicial review) for breaching statutory duty.

 

Conclusion

The three Ombudsman decisions serve as a stark warning. They reveal how a Council, an NHS Trust, and an ICB collectively failed one of the most vulnerable – a man with serious mental health and developmental disabilities – by not upholding their legal duties under Section 117 MHA. The case exposes how internal policies and commissioning gaps led to inexcusable delays, leaving a family without support and forcing them to fight for years. It took sustained advocacy by a determined father and repeated interventions by the Ombudsman to spur belated action. While the latest decision promises corrective measures, it comes only after significant injustice and stress.

For other families and practitioners, this story underlines the importance of holding authorities accountable. If aftercare duties are not being met – no care coordinator assigned, no review meetings – one should not hesitate to escalate complaints. The law is on the patient’s side: aftercare is a right, not a favour. Local bodies must coordinate effectively, or they risk not only Ombudsman findings of fault but also the real harm of people falling through the cracks. As this Peterborough case shows, persistence is sometimes required to ensure bureaucracies do what they are obliged to do. Ultimately, the hope is that lessons from these three upheld complaints will drive change, so that no other family has to endure a similar saga to get the support they deserve.

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[1] Department of Health Refocusing the Care Programme Approach. Policy and Positive Practice Guidance (2008) at https://www.proceduresonline.com/trixcms/media/1116/refocusing-the-care-programme-approach.pdf.

[2] Box, S (1983) Power, Crime and Mystification (London: Tavistock) p.21 cited in P Hillyard, C Pantazis. S Tombs and D Gordon (eds) Beyond Criminology: Taking Harm Seriously (Pluto Press 2004) at 68; and see L Clements and A L Aiello Systems Generated Trauma (Cerebra 2025 – publication pending).

Posted 13 August 2025