Date of decision: 06 January 2025
Summary
A person challenged the conditions and communication around a supported living housing arrangement, alleging loss of independence, distress, and psychological harm. The Ombudsman closed the enquiry down after initial probing, finding insufficient evidence that would be likely to lead to a finding of fault against either s117 partner.
What happened
Mr B moved into supported living several years previously, presumably after discharge from hospital. His aftercare was funded by Worcestershire County Council and the Integrated Care Board under Section 117 of the Mental Health Act, suggesting he had been sectioned originally under s3.
The housing and support setting, provided 11 hours of one-to-one support per week, which the person had agreed to.
Mr B later objected to being expected to attend all support sessions, claiming this restricted independence and conflicted with prior commitments to maximizing his autonomy.
The support provider stated that engagement with the support package was a condition of being what the report calls a resident – and funding.
When Mr B did not fully engage, he was warned that continued non-engagement could lead to loss of the housing and funding.
The warnings came from the provider of the support, who said that ‘it was never meant to represent permanent accommodation, and had been intended to last for a maximum of 2 years.’
Mr B left the placement and now lives alone, reporting a lack of support and social isolation.
What was found
The Ombudsman acknowledged the distress caused to Mr B by the tone of eviction warnings but found that the support provider and Council/ICB acted within the terms of the agreed support package and statutory framework.
The provider made reasonable efforts to accommodate preferences for support workers, but could not guarantee unlimited choice. As the person was not engaging with the funded support, the provider was entitled to withdraw the service offer, so others could benefit.
The Ombudsman concluded there was no evidence of fault or unreasonableness by the Council or provider and declined to investigate further.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Section 117 of the Mental Health Act 1983 imposes a joint duty on health and social services to provide aftercare services, including directly provided accommodation, in exceptional circumstances, for individuals discharged from hospital following detention under certain sections of the Act.
Such aftercare must address needs arising from the mental disorder and aim to reduce the risk of relapse and re-admission. Section 117 aftercare cannot be charged for. There is no legal debate to be had about eligibility FOR the status – only the question of what is needed to deliver the statutory purpose of preventing deterioration such that the person must be readmitted to hospital.
The case law and Code of Practice under the Mental Health Act are consistent with accommodation being considered for inclusion ONLY if it is essential to deliver the aftercare purpose, in which case it is known as “accommodation plus”. This means that it must be specialized in some way, even if it is not a care home; the need for it is related to mental disorder and the supply of it is intended to reduce the risk of deterioration of the person’s mental disorder.
Most people are not ‘placed’, in any formal sense, by the s117 partners, but are facilitated (signposted, steered etc) to find a tenancy in which they are provided with the necessary care and support, generally in supported living, which means that they have effectively sorted out their own need for housing, without accommodation plus provision being necessary.
It is not helpful to call such tenancies a placement, because the s117 team does not arrange the placement or fund the accommodation.
This is a worryingly legally illiterate report which does not make it clear whether the man was a tenant or a placement recipient. It references ‘accommodation plus’ as background and calls the arrangement Mr B was supported in a ‘placement’ but then implies that all he was getting in his package was the support, ie that he was a tenant and not receiving any ‘placement’ directly in his care package under s117.
There is clear reference to eviction risk with 2 months’ notice which would accord with Assured Shorthold Tenancy protocol.
There is information in the report about the facility now being run by a charity which is providing social housing and support, which might mean that it used to be run as a care home, but that its status had changed.
The investigator refers throughout to the support provider as ‘the Placement’ and the source of the condition that Mr B positively engage with the 11 hours of support per week – maybe suggesting that the provider and housing provider were one and the same, and that there was no breach of registration condition for residential care because he just did not NEED care, only support.
However, it is simply not clear whether there WAS a condition of the likely tenancy that he engage with support. The Investigator said this:
“However, the Placement was ultimately correct; if he did not meet the criteria of the support package, he was no longer eligible for it.”
That is missing out at least 2 other lines of enquiry: had he been asked to agree to such a tenancy condition, and was the real issue here that he was being regarded as no longer in need of the services by way of aftercare – which would have signalled that the partners should have been bringing his s117 rights to an end.
We are told he agreed to the support. But that is different to agreeing to support as a condition of being able to live somewhere. If he had been agreeable to the engagement with support as a condition of ‘tenure’ within the context of conversation about the maximum period the accommodation would be on offer via a standard AST (these can currently always be terminated on 2 months’ notice) that would make it a term of the tenancy. Moreover, we would accept that if he did not need even prompting regarding his personal care, then there is nothing wrong with there being such a tenancy condition, as long as he understood it. Acceptance of CARE is what turns a tenancy into a care home arrangement in CQC’s eyes and the law. But that means that we all needed to be told that the term existed and what it had said!
This level of inattention to detail is worrying in light of the fact that prior Ombudsman’s reports have made much of the distinction between s117 accommodation and s117 care and support; it is as if there is no corporate memory of previous s117 decisions insisting on attention to the accommodation plus question, nor any checking of consistency within the organisation’s management?
Even if the support provider was one and the same as the housing provider, a threat to evict for non-engagement with support is still surprising, when eviction would have been lawful anyway, and would have offered due process, via an ordinary s21 Housing Act Notice, once the man’s rights to s117 aftercare had been properly agreed to be terminating for want of need.
So we think that there was much more going on here than apparently occurred to the Ombudsman’s triage team. We are still not sure that the placement was in fact an instance of accommodation plus such as step down housing and support, that some councils do offer. In that situation we have heard of councils really doing well with speedy hospital discharge, only to find that they can never move the person on, because the Housing Authority treats the person as having accommodation where it is reasonable to expect that person to stay, and after a year or so with the support, no longer vulnerable so as to qualify for homelessness provision.
The January 2024 NHS England guidance on hospital discharge, mentioning the innovative solutions that have been developed in some councils (without saying anything about accommodation plus duties to the exceptional few) says nothing either about that ‘Catch 22’ predicament.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Worcestershire County Council (24 005 493) report.
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