The local and health service ombudsmen have just issued their most recent joint report on councils’ and ICBs’ approach to accommodation for people on s117.
The sector should be engaging with government and NHS England and providers urgently to decide what to do about it – one has three months for a judicial review, and the time limit is strict; the decision was issued on the 10 September.
Cheshire East was taken to task and told to repay £59K plus interest, after ignoring the need to provide for accommodation IN the s117 care plan, when the nature of the accommodation changed from a care home to a tenanted setting in 2019. 21 other people’s situations need looking at… that is no small sum of money to be looking at returning.
Mrs K was the professional finance and property deputy for Miss D. At some point the property the client was living in was deregistered as a care home and she was told she should claim housing benefit, which her deputy would have been able to do, except that Miss D had too high a level of savings to qualify.
Mrs K thought about it and asserted that the accommodation should always have been provided without charge in line with the terms of section 117 of the Mental Health Act 1983.
Miss D is still under the care of the local Community Mental Health Team. She was first compulsorily sectioned in 1990. A predecessor council had been responsible for her aftercare needs until 2010. She had a learning disability and further diagnoses [it is not clear when, but potentially since that early point] of anxiety, depression, post-traumatic stress disorder, psychosis and personality disorder.
Her care and support and accommodation needs had been met under s117 in various residential care homes, and also in supported living placements, since the current Council became responsible in 2010.
The care home in which she was living in before 2019 was operated as such by a consortium made up of the landowner and a care provider. The parties decided to change the building into supported living accommodation.
The s117 partners responsible for Miss D’s package of aftercare must have accepted that Miss D’s needs could still be met in the same environment but they stopped paying for Miss D’s accommodation costs, telling her and the other residents they needed to make a claim for housing benefit now they were paying rent. Miss D then had to pay the costs for her accommodation from her savings until she became eligible for housing benefit, once again, in April 2022.
Mrs K as the deputy communicated with the Council’s legal team in writing and made a formal complaint. She asked the Council to repay all the money Miss D had paid for rent. When this proposal was rejected, Mrs K asked the Council to provide evidence of any change in Miss D’s section 117 aftercare needs, to support its rationale for ceasing to fund the package in total.
The s117 partner’s position was that the provision of accommodation could be separated from the provision of care when the provider had changed the status of the property.
Both parties sought further legal advice on the matter. Mrs K made a subject access request on behalf of Miss D following advice from her legal advisor so that she could review Miss D’s social care and medical records.
She asserted that Miss D had always and still did meet the criteria found in case law [not elaborated upon in the ombudsmen’s report, but it will have been Mwanza from 2010 and Afework from 2013]:
-`All of Miss D’s accommodation needs had been met under s117 since her discharge from section 3 detention, up until the placement was deregistered in April 2019.
– Miss D’s accommodation had been under the same care team since deregistration and her care needs had not changed, as shown in the care plans she had reviewed.
– The cost of her rent exceeded the cost of ordinary accommodation by around £300 monthly. The provider said this was because the accommodation was staffed 24 hours daily [but the provider did not provide any other reason for the accommodation element costing more than the going rate in the area to the Ombudsmen, it seems].
– Miss D had not arranged her ‘placements’ in person, having always relied on the Council and the CMHT/ICB to ‘place’ her.
The Council and the ICB agreed that Miss D’s need for accommodation was a direct need resulting from her detention under the MHA. They did not agree, however, that she lived in enhanced specialised accommodation as per the case law or that she was being placed in accommodation involuntarily due to a lack of capacity arising from her mental condition.
That latter reference was a feature of one of the cases cited in argument, (Afework), which has been criticised by academics and professionals as being an unjustified requirement for qualifying for funded accommodation under s117, in view of the legal history appertaining to s117 itself.
This particular investigator asserted that the case law confirms that accommodation is usually a common need for all people and that for accommodation to count as an aftercare need, the person must have a need for ‘accommodation plus’. This means, the report contends, that the person’s profile of needs must be for enhanced specialised accommodation as the pre-condition for effectively meeting the needs arising from or related to their mental disorder and contributing to the avoidance of deterioration and re-admission.
The s117 partners in this matter said that once a property becomes ordinary housing, responsibility for paying rent, food and utility bills becomes the responsibility of the tenant, like food bills or bus fares, we are guessing. But the ombudsmen pointed out that it is not lawful to expect the individual to pay for that element of their aftercare, if it has not ceased to be n needed as the bedrock for the practicable delivery of all the other aftercare services.
The decision holds that when accommodation is an essential part of a person’s section 117 aftercare, it must be provided by the s117 partners without charge to the person, as with all aftercare, unless or until the person can be discharged from their s117 status by agreement of both partners. This means that Councils and ICBs should not advise people to claim housing benefit to pay for accommodation of such nature that it can only be seen as integral to their section 117 aftercare.
The Ombudsmen found that Miss D experienced substantial injustice due to depletion of her savings which amounted to over £59,000 plus interest and the legal advice costs of sorting out her rights.
Tellingly, the officers, who were experienced health and social care practitioners, had themselves concluded Miss D’s accommodation should be funded in line with section 117 of the MHA. Their management had apparently ignored their recommendation.
That meant that the Ombudsmen could say that there was not enough evidence to show the Council and the ICB had acted on the outcome of the latest review in 2023, which their officers completed, in response to the dispute. The Council and the ICB were criticised for spending time and money on disputing the definition of enhanced specialised accommodation.
There were three homes which were deregistered in the area in February 2019 which affected 21 former residents. A number of these residents previously had funding in place for their accommodation in line with section 117. These residents may also have been caused injustice and been out of pocket due to having to pay rent, council tax and service charges. If so, they should be refunded with a written explanation and apology with information about how to complain if they or their representatives wanted to.
The Council and the ICB were told to consider this further and evidence that they had done so.
Interest would need to be paid based on the restitutionary sum in line with the average retail price index starting from February 2019, when Miss D started paying rent to the date of repayment.
In addition, the avoidable expense Miss D incurred of £9,143 legal fees should be repaid.
CASCAIDr Commentary
The joint ombudsmen’s decision was that the s117 authorities should continue to pay for the accommodation until Miss D could be discharged from section 117 aftercare.
In terms of training consequences, all staff whose responsibilities could include administering, commissioning, assessing for or providing section 117 aftercare need to have knowledge of the relevant law, guidance and policy, as appropriate to their roles, with training as necessary.
Staff needed to be reminded that the duty to pay for accommodation which is part of section 117 aftercare services is imposed on the Council and the ICB and does not end simply because the status of a property may change to supported living accommodation and that those entitled to section 117 aftercare accommodation plus should not be told to claim housing benefit, as set out in the parties’ current joint policy.
We are aware of turf wars between Housing Authorities and s117 teams where neither side knows much about the legal framework under which the other one operates. Housing officers bat people with s117 status back to the relevant s117 council, simply because of the status; and s117 staff follow NHS guidance from January 2024 and provide ineffectual support to people awaiting discharge to present as homeless or threatened with homelessness, and use Care Act paperwork to get discharge planning underway. For the vast majority of clients awaiting discharge, they are signposted to a vacancy in supported living, and encouraged to sign a tenancy, without anyone telling them that aftercare services cannot be made conditional upon a person going to live where it just happens to suit the commissioner, into a previously set up purchasing arrangement for shared care services for the occupants.
This limbo cannot be great for anyone’s recovery, let alone the people on the Transforming Care list of people stuck in psychiatric facilities for want of any suitable setting to go to.
We think that the law is that s117 needs of an exceptionally complex degree do trump the Housing Act functions, because the courts would never expect a Housing Authority to secure temporary accommodation or settled accommodation for the long term, of the necessarily enhanced specialised nature under its ordinary functions, nor in time to deliver an effective setting for hospital discharge.
But at the same time, we would also say that s117 partners would be the very last ones pushing for that outcome, because it would bankrupt them in terms of the cost of delivery of the supervision and support towards recovery. If every s117 person fit for discharge were to be housed all over a geographical area, in single accommodation units, in undesirable places, as would be the outcome if they were to be provided with temporary accommodation under the Housing Act, the cost of meeting their needs would be astronomical. So shared care in the semi-normalised world of supported living is essential for the sector’s continued functioning, and that means the focus must be on what distinguishes enhanced specialised accommodation from the more commonplace need for access to supervision, around the clock, from competent trained staff with mental ill health awareness?
In coming to their view in this case, there was not enough evidence to show how or whether the Cheshire East Council and the ICB considered the MHA Code of Practice and this was found to be fault. The LGSCO report reminds everyone that s117 MHA does not stipulate aftercare cannot be provided for supported living accommodation and that the MHA Code of Practice says health and social care authorities should interpret the definition of aftercare broadly and aftercare can include supported accommodation.
“There was no evidence to show the Council and the ICB followed a formal process in line with the MHA and the associated Code of Practice to either discharge [Miss D] from s117 status for aftercare services or to alter her section 117 aftercare plan, following a proper review when the status of the property changed. This is fault.”
The documents independently satisfied the ombudsmen that Miss D had an ongoing need for accommodation both because of her mental health disorder and to prevent deterioration and readmission to hospital. Information in the documents stated:
– Miss D would be at risk of her safety and wellbeing being compromised within and outside of her home, if staff were not available 24 hours a day to monitor and support her.
– Miss D often feels at risk, and she relies upon the support she receives within her supported accommodation, to keep her safe and to help her feel safe.
– The assessment concluded the risk is well managed in Miss D’s current housing situation.
The Council and the ICB had completed a review of Miss D’s needs in May 2023. That review document stated the care appeared to be meeting Miss D’s needs and was helping her to achieve her outcomes, optimising her wellbeing. Miss D was supported by an in-house staff team to order, collect and take medication. Miss D required staff on site due to the complex nature of her needs and fluctuating pain, mobility and mood. She was only safe when someone was always present within the home. The primary reason for the support was because of her mental health needs.
What we are not sure about here is whether the Investigator was saying that the failure to DO a review in 2019 meant that the need for the accommodation that had been a care home was still the evidential basis on which it could still only be said that it was an ongoing need, or whether the Ombudsmen were deciding as a matter of fact themselves that it was still needed? We don’t think that any Ombudsman has power to make that latter decision, but it probably doesn’t matter. The former position would have been a legitimate basis for the report finding, should this decision fall to be judicially reviewed by NHS England, ADASS or any of the other bodies that ought to care about the unsatisfactory state of the law on accommodation plus profiles of need.
The s117 team asserted that Miss D did not lack capacity to make decisions about her accommodation and care and support arrangements but a number of assessment documents stated that she had been assessed as lacking capacity in relation to being accommodated at her current home when it was a care home, and there had been a DoLS put in place in 2010.
This is unjustified in our view as a matter of law – both that lack of capacity is a requirement and that the past records meant that ‘moving’ to a tenancy in 2019 was properly regarded as ‘involuntary’.
The report does not say who if anyone signed a tenancy for this person’s tenure in the housing that was a care home no longer; it was probably Mrs K, but it might not have been. The reason the involuntariness matters is that one cannot be presented as homeless if one lacks capacity and one does not HAVE a deputy or other authorised property and finance representative to make a Housing Act application; special wording has been said to be required to enable an MCA appointed deputy or attorney take that step, and therefore it is a pointer to NEEDING accommodation plus, only. (See WB in the Court of Appeal for this important sub-topic of the legal conundrum).
The investigator suggests to the sector that if a s117 review concludes that ‘the services’ now only meet needs that arise from/relate to the mental disorder but are no longer required to reduce the risk of deterioration in the person’s mental condition and accordingly reduce the risk of hospital admission for treatment of mental disorder, then the person can be discharged from s.117. We do not disagree with that as a statement of law but think that the investigator should have explored what that means when ‘the service’ is the person’s accommodation…. We think it means that the person’s accommodation could cease to be no longer needed by way of aftercare, but that that does not mean that none of the other services are no longer needed for the aftercare purpose, such that the person’s STATUS cannot therefore be terminated, as yet.
The investigator said that if the review concludes that there is now no need arising from or related to a mental disorder, then it will follow that there is also no risk to the person of experiencing a deterioration in their mental condition and accordingly of being admitted to hospital, so that the result would be the same: the person could be discharged. If the investigator meant ANY mental disorder, and not merely the one that had led first to the sectioning, then in that situation, we would agree with that too. The scope of aftercare was positively broadened to refer to any mental disorder when the MHA was amended by the Care Act, and must be taken to have impliedly overridden any case law to the contrary, which had come out before April 1, 2015.
The ombudsmen went well beyond the case law in seeming unawareness of the culture in the sector, however, by finding that it was unlikely, on balance, that ordinary housing would ever have the features associated with Miss D’s property such as 24-hour staff presence which includes waking night staff and a room dedicated for the sole use of staff employed by the Provider. The provider had confirmed the “supported living accommodation which is staffed 24 hours per day… is not comparable to a private house share.” The ombudsmen saw no evidence that this information was considered as relevant to the question of the specialisation of the housing and said that this was fault.
So it seems as if the ombudsmen were saying here that the need for access to 24 hour accommodation was the test for getting free accommodation from the State under s117, rather than through HB for those who qualify, which is going far too far, unfortunately, in our view.
Access to 24 hour supervision is in fact wholly commonplace, in the sector.
This is only possible because of the legal construct (not quite a fiction as such, but on the way towards so being, in terms of actual arrangements between real world providers and housing providers, we would suggest, and which are widely ignored by CQC as the regulator…) that supported living arrangements do not amount to care homes (ie compulsorily registrable care together with accommodation) if there is a valid tenancy that the person or a lawfully authorised deputy or attorney has in fact chosen to sign.
So if this investigator was correct, it would mean that all such supported living needed to be provided and paid for directly by s117 authorities, and no doubt that argument would spill over into the care planning processes for people without s117 status under the Care Act too.
The 2024 Campbell decision means that it is at the moment unclear whether councils EVER have the legal power under the Care Act to provide accommodation directly to disabled people outside the Housing Authority’s functions owed to homeless people or people threatened with homelessness, pending enquiries as to their intentionality and priority need, if they are not from abroad with a special human rights claim to be provided with shelter.
We think it is clear that the Care Act allows for the provision of accommodation to nationals for meeting exceptional profiles of need, and hope that that the Court of Appeal decision is appealed.
But if this investigator is correct as to what makes for an accommodation ‘plus’ profile of need, then half of the cohort in supported living would count as having accommodation ‘plus’ needs too, and not ‘needing’ their tenancies because of an entitlement to have their housing provided directly by social services, and not therefore, attracting housing benefit.
Bang goes supported living, then, and this why legal literacy matters, and why this sort of report cannot just be left to cause havoc, however well-intentioned.
What is clearly correct about this report is the statement that aftercare services (the status, we think the investigator means to reference here) cannot be withdrawn simply because the status of a person’s accommodation changes from registered residential care accommodation to supported housing accommodation.
We think that an important feature of the law that has been overlooked by the Ombudsmen since 2017 when it first started saying that people on s117 deserved accommodation to be paid for as part and parcel of their package is that even if something is someone’s legal entitlement they or their welfare representative, with power to refuse a service, are still allowed to CHOOSE to meet their own needs, because it might be better for them to do so.
Sucking in assets and strengths is an example of that approach under the Care Act, of course.
We don’t think that the fact that s117 aftercare services do have to be FREE means that the need for them cannot be obviated by a person or their relative privately supplying what would otherwise have been obliged to be commissioned.
This means that we think that anyone who is thought appropriate for group houseshares as the setting for their aftercare could and should be offered a tenancy, if they want to sign up for one or have a deputy/attorney who wishes to see their daily living arrangements normalised in that way, understanding that this is one option and contending for accommodation ‘plus’ is another.
It is much more likely that that will be the case where the person will qualify on means for Housing Benefit, and we do not then think it is inappropriate to explore whether that will ‘do’.
But for those for whom it will not do, (people who need to live alone, in an authoritative benign staffed regime for instance, with a CopDol authorisation) and people who will not qualify for housing benefit, we think that all s117 staff must be taught that they must ask themselves the question as professionals, as an essential part of care planning before discharge from hospital, whether or not the existence of suitably located and suitably enhanced accommodation needing physical changes or extra adaptations is essential for aftercare to be workable and thus for the person to be discharged, and if so, then it must be provided, directly, under and IN the s117 care plan.
The ombudsman/men has NEVER applied the basic public law principle that people can meet their own needs if they want to, or grappled with the point that a s117 person with a mortgage on the property they go back to does not get their mortgage paid, even if they were to be provided with 24 hour care at home: they have arranged their own accommodation in that situation, however specialist it might be able to be made, through adaptations or enhancements arranged by a deputy or through the DFG route.
If we were Cheshire East, we would want the NW region of ADASS to find the money to take advice about bringing JR proceedings against the full scope of this particular decision; but the whole of the sector, including NHS England in its January 2024 Guidance on s117 discharge, just seems to want to ignore these reports, for one reason or another.
So we will try this new tack: we challenge every legally qualified deputy acting for a s117 patient in the professional role of looking after the assets of a s117 entitled person, to act in their best interests and open up the debate as to the funding of their housing, so that the sector actually grapples with this question.
We note that the report does not say whether Mrs K and the s117 partners SHARED their legal advice. Those advising (likely barristers and specialist law firms) can’t all be right. Allowing this sort of issue to continue unresolved is wasting thousands of pounds and hours of professional time.
Most tantalisingly, accommodation ‘plus’ rights hold the answer (or at least offer ONE answer) to the Transforming Care queue – if in fact any bunch of people could be said to need specialised accommodation, and to be directly provided with it, in a location that actually fits their aftercare needs, and with a bespoke package of adaptations and enhancements built around them as individuals, integral to living where the housing has been provided, it will surely be them, especially since the Transforming Care Capital Grants system was brought to an end.