Date of decision: 14 August 2025
Summary
This joint ombudsman’s report concerned a woman required by the Council to fund part of her supported living accommodation, despite her entitlement to s117 aftercare following detention under the Mental Health Act. She faced uncertainty, confusion and distress because the Council’s policies contradicted national guidance—leaving her at risk of financial insecurity and preventing her smooth discharge and recovery.
What happened
In 2021, a woman was detained under the Mental Health Act under a hospital order. She was discharged from hospital by a Hospital Trust in October and became entitled to Section 117 aftercare.
In 2022, after an overdose, she was readmitted as an informal patient.
In mid-2024, the Council assessed her need for supported living after discharge. The Council advised her that under its Multi-Agency Policy (developed with the NHS Kent and Medway ICB), she would need to pay for rent, utilities, and service charges herself, claiming housing benefit, if eligible. The Council considered that taking up a tenancy in supported living did not qualify as “accommodation plus” as a matter of law, under s117. The woman challenged this advice, finding it contradicted both national and the Council’s own Generalised Policy.
The Council apologised for the confusion and amended its Generalised Policy by mid-November 2024, but continued to assert that supported living did not meet the relevant criteria for full funding, without a detailed assessment or reasoned analysis.
On 11 December 2024, the Council and ICB agreed to fund her aftercare placement but maintained rent and utilities were excluded. The woman complained to the Ombudsman on 15 December 2024. During the investigation, the Ombudsman found no evidence of a proper needs assessment or explanation for the refusal to treat supported living as “accommodation plus”.
The Council and ICB acknowledged the flaws and confusion in their approach and agreed to review their policy so that it complied, and reassess her needs, as well as paying compensation.
What was found
The Ombudsman found the Council and ICB at fault for applying a flawed policy that wrongly excluded supported living accommodation costs from s117 aftercare, contrary to statutory guidance.
The investigator considered that the Council and ICB fundamentally misunderstood the CLAE’s earlier decision which had been cited as the reason for its change to the wording of its policy. [We think that that decision may be the Warwickshire LGSCO report (21 008 501) but we are not sure, given the date the decision was issued]. In that prior report in question, it was found that the local authority had decided the person’s accommodation formed part of their s117 aftercare, such that the local authority should have funded it in full, rather than ask the person to claim housing benefit to contribute toward their accommodation costs.
The Council’s amendments to its own flawed Multi-Agency Policy could not be said to have accorded with that LGSCO decision, in THIS investigator’s opinion.
The organisations failed to carry out a proper assessment or provide clear justification, causing the individual distress, confusion, and risk of financial vulnerability. They agreed to apologise, pay £500 for this injustice, review their Multi-Agency Policy to comply with the law, reassess the individual’s needs, and review funding arrangements for others in similar circumstances.
The Ombudsman highlighted that around 250 affected individuals may be at risk due to this faulty approach, just in Kent alone. The organisations were expected to review whether those people’s situations had been similarly treated and review the role of the accommodation within their s117 aftercare plans.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s report highlights significant failings by the Council in recognising the full scope of s117 aftercare, particularly as it relates to meeting housing costs in supported living for those discharged under the Mental Health Act. The Code of Practice to the Mental Health Act which is statutory guidance says that aftercare under Section 117 can include all types of accommodation including supported living and continues as long as the person needs those services by way of aftercare.
The report said that such a need must be for enhanced specialised accommodation ‘accommodation plus’, and must arise from or be related to the reason the person was detained in hospital in the first place and reduce the risk of the person’s mental health condition worsening and the likelihood of them returning to hospital for treatment for mental disorder.
This is not fully in line with commentators’ views on the law NOW, since the Afework decision of 2013 preceded the coming into force of the Care Act – and the Hansard debates at the time made it clear that Parliament was expanding the definition of aftercare so as to incorporate needs for input related to any mental disorder a person has got, not merely the one he or she was originally sectioned for. Commentators such as the barrister Alex Shattock have since said this: “The additional element of involuntariness introduced by Mostyn J did ot appear to have a basis in case law, was not explained by the judge, was not a necessary element of that case, and was contrary to Mwanza, in that regard, from 2010. The report includes a reference to the 2022 joint PHSO and LGSCO guidance on s117 Aftercare and we think that this is all the investigators at the CLAE ever look at in these type of reports, but the advice is free to all, on this site.
The case law on accommodation plus (and there have been High Court cases in 2024 about the topic in the context of the Care Act) underscores that local authorities and integrated care boards cannot lawfully restrict their s117 responsibilities by narrowly defining “accommodation plus” or by relying on locally developed policies that conflict with national statutory duties.
Failure to conduct an individualised, holistic assessment of need and to provide a clear, reasoned justification for any exclusions not only risks legal challenge on public law grounds but also runs counter to the principles of rational, fair, and lawful decision-making that underpin mental health aftercare duties.
Councils should ensure that any policy on aftercare funding is openly reviewed and revised to avoid recurring legal risk. Action-oriented recommendations are that local authorities must review all current cases potentially affected by previous failures, provide individual remedies, and adopt training and oversight to promote full legal compliance across departments.
It is striking that this complaint may have led to reimbursement for 250 other individuals who had not yet complained about being wrongfully charged for s117 services.
The organisations should amend their policy and review her care plan so it reflects how they will fund accommodation under Section 117.
We can only suggest that all Councils and ICBs look at the advice of the barrister Alex Shattock, which was commissioned by this organisation’s predecessor (CASCAIDr the charity) on s117 and accommodation plus profiles of need, which can be found here.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Kent County Council (24 016 385) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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