Date of decision: 23 February 2026
Summary
A woman entitled to free s117 aftercare after detention under the Mental Health Act moved from a care home to private accommodation, expecting properly planned support. Instead, Islington Council, the ICB and the Trust failed to complete a timely, comprehensive aftercare assessment or clear plan, leaving her without agreed funded support and her family providing intensive 24‑hour care. Confused responsibilities, poor analysis of how her physical Parkinson’s needs and mental health interacted, and prolonged delay, caused significant stress, uncertainty and financial pressure for her daughter and partner.
What happened
Mrs X, who has late‑onset psychosis and Parkinson’s disease, which causes symptoms like tremors, slowness of movement, and rigidity, was detained under s3 of the Mental Health Act in early 2021; her mental state improved on antipsychotic medication and her detention was ended, after which she moved to a care home in spring 2021 and then to a different care home in autumn 2022. At that point she was fully funded by Islington and the ICB in that care home under s117. Mrs X’s needs were seen as what was recorded during a ward discharge meeting in late May 2021, and what was later recorded through a Care Act assessment.
Before s3 detention, Islington Council had already arranged Care Act‑funded support, including waking‑night care and daily visits, noting that her Parkinson’s‑related physical limitations, pain and severe mood swings affected her mental health and that she needed constant reassurance. Mrs X had specifically said her mental health was being affected by the stress and anxiety felt from the changes in her health as well as the stress felt by the family in their caring role.
The discharge summary when she left the psychiatric hospital after she had been stabilised on antipsychotic medication and was happy to adhere to it had said “No organic cause was identified to explain the deterioration in [Mrs X’s] mental state”.
In summer 2023 Mrs X told professionals she wanted to leave “the care home system” and live in a house in another part of the country, and Mr B recalls Trust staff being positive about s 117‑funded direct payments and Council staff indicating that the local council where she moved to would determine her community support; Mrs X left the care home in September 2023, moved into private accommodation, and her daughter Ms A and her partner Mr B began supporting her there.
In September 2023 the local council in the new area carried out a Care Act assessment, identified multiple needs arising from physical and mental impairments, and concluded that without support Mrs X’s physical and mental health might deteriorate and she risked further hospital admission, recommending that Islington (still liable based on the ordinary residence rules, despite the move) fund the full package under s117 ‘because her physical health impacted her mental health’.
Ms A and Mr B asked for a direct payment so Mrs X could pay them for full‑time care, but the local social care staff initially said this was not possible because they lived at the same address, with only a possible exception discussed and no formal decision or progress.
Islington Council’s position was that the local council would assess under the Care Act and then the two councils would agree which elements were within the definition of s117 and which were properly seen to be Care Act‑funded, but when the local council completed its assessment and clearly stated its view that section 117 should cover the package, Islington did not accept or act on that assessment and did not produce its own detailed rationale.
Mr B complained to the Council and Trust in late March 2024, arguing that Islington had wrongly separated Mrs X’s physical and mental health needs, delayed in arranging s117 aftercare, denied advocacy and meaningful consultation, and failed in communication; he said the gaps meant he and Ms A had to provide 24‑hour unpaid care, leaving them exhausted, unable to earn, and under “perpetual stress”, which he believed worsened Mrs X’s condition.
In May and June 2024 a Council professional [we think it was someone from Islington] assessed Mrs X, meeting her with a translator and with Ms A and Mr B present, recording that she wanted to remain in the community and receive care from her family only, and that she needed frequent support day and night for Parkinson’s‑related symptoms, with eligible social care needs in several Care Act areas.
Ms A and Mr B said Mrs X needed 24 hour care and support at home. On average she needed support every 15 minutes during the day, and about three to five times during the night.
The assessment also recorded that, alongside this Care Act assessment, a s117 review and “Split Funding Tool” were completed and that a Mental Health Panel would decide Mrs X’s “s117 status” and the Council’s responsibility; meanwhile, the Trust acknowledged in a June 2024 complaint response that the details of Mrs X’s physical and mental health needs had not been resolved since she left the care home in September 2023 and accepted there had been a communication breakdown over the nature of s117 and Islington’s ongoing responsibility.
Islington Council later completed its own s117 review and reassessment in August 2024, concluding that Mrs X’s mental health was stable on medication, that she did not need s117 support to stay well at that time, and that her care and support needs “demonstrate those needs being predominantly attributed to her physical health needs due to her Parkinson’s Disease”..
But the Ombudsman found this review did not directly address the earlier local council’s assessment, Ms A and Mr B’s arguments about the link between physical and mental health, or even the Council’s own pre‑detention assessment that had linked her physical deterioration to mental distress and need for reassurance.
Mr B responded with extensive (75) corrections to the Council’s assessment and sought an independent social care assessment, while Islington Council said it was waiting for the local council to submit a care package request after finishing its own assessment.
In late December 2024 the local council completed a further Care Act assessment, again recording Mrs X’s complex needs, stating she required ongoing support to manage both mental and physical health to prevent deterioration or hospital admission, and noting that Islington had applied a “funding matrix” that treated her needs as 10% mental health‑related (to be funded under section 117) and 90% physical (to be Care Act‑funded and financially assessed), a split Ms A and Mr B disputed and which still awaited an Islington Council panel decision, with no timescale. The local council assumed that Islington was expecting it to pay for 90% of the package, but that no formal funded care was needed because Ms A and Mr B were willing to meet the needs, informally.
Throughout, records showed numerous enquiries from Ms A and Mr B about possible support such as direct payments for family carers or language‑matched care workers, respite, community and wellbeing activities, but apart from a four‑week respite stay arranged by the local council, no ongoing formal support package was put in place during the investigation period.
Internally, both the s117 Council and Trust maintained that Islington’s section 117 responsibility had never lapsed, yet externally Mr B had been led to believe for around nine months that the Council did not accept responsibility, and the Trust ultimately accepted that the nature of s117 duties and its and the Council’s obligations had not been adequately explained to him.
By March 2025, outside the investigation period but noted by the Ombudsman, the local council told Islington that respite was the only support it had actually implemented and that there were no other current care and support requests from Mrs X or her family, underscoring how little progress had been made on an agreed care plan since her move in 2023.
What was found
The Ombudsman found that Islington Council, the ICB and the Trust failed to carry out a comprehensive s117 aftercare assessment and to put in place a clear, bespoke aftercare plan when Mrs X’s detention ended, and again failed to do so in a timely way when she moved from residential to privately arranged community living. It was fault not to have formal s117 paperwork or a coherent care plan at discharge; to rely on piecemeal discharge notes and later, Care Act assessments, instead, and then to ignore or inadequately analyse the local council’s detailed view that her physical needs could not be separated from her mental health ones for aftercare purposes.
The Ombudsman accepted that, in principle, some needs may fall outside s117 and instead be met via the Care Act, but criticised Islington’s approach because it did not transparently explain, with evidence‑based reasoning, which of Mrs X’s needs should be treated as s117 aftercare and why or why not, particularly given previous Council records linking her physical deterioration and pain to mental health decline and the risk of readmission.
The late s117 review in August 2024 was found to be flawed because it asserted that Mrs X did not need aftercare Services to stay well but failed to grapple with the family’s and local council’s concerns about the mental impact of unmet physical needs and her need for constant reassurance.
Responsibility for s 117 aftercare lay jointly with the Council and ICB, and although the ICB had delegated operational tasks to the Council, [which it cannot do, legally – it can only be delegated the other way around] the Ombudsman stressed that overarching responsibilities cannot legally be delegated; the ICB was therefore also equally at fault for the absence of timely, robust aftercare planning and oversight. The Trust (as responsible for co-ordination) shared fault for aftercare failings because it was involved in assessments and planning but did not ensure that an appropriate s117 care plan and co-ordination were in place, and because it contributed to confusion by failing to communicate clearly to Mr B what s 117 entailed and that Islington’s responsibility continued.
These faults caused significant injustice: for Ms A and Mr B, prolonged uncertainty, stress, frustration, and the burden of providing round‑the‑clock unpaid care while facing loss of income and financial difficulties; and for Mrs X, a likely impact from the stress and instability around her support arrangements, even though she was described as content with family care and somewhat shielded from direct dealings with agencies.
The Ombudsman considered that the Council and Trust had at least acknowledged some internal fault and offered apologies, including a modest £300 payment from the Council, but found these remedies did not fully reflect the extent and duration of the injustice until the joint investigation clarified systemic failings.
To remedy matters, the Ombudsman required the Council, ICB and Trust within one month to acknowledge the fault identified in the decision and apologise for the impact of these failings (with translated letters for Mrs X) and within one month for the Council and ICB to ensure Mrs X has a comprehensive s117 aftercare plan which includes consideration of and a conclusion about which of her needs are eligible for support under s117 and why.
This should include consideration of the interaction between her physical and mental health needs, and be grounded in law and guidance, and set out clear options for delivering any necessary support.
Within two months each of 3 organisations must pay £250 to Ms A and £250 to Mr B (so each relative receives £750 in total), as a symbolic but tangible acknowledgement of the uncertainty and frustration caused; the Ombudsman did not recommend a payment to Mrs X, given the evidence that Ms A and Mr B had shielded her from much of the process‑related stress.
Within three months the organisations must also produce an action plan addressing the specific failings identified—absence of timely s 117 assessments and plans at discharge and after moving out of residential care, and failure to consider and analyse evidence about the relationship between Mrs X’s physical and mental health needs—and demonstrate how they will change processes to avoid similar failures.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This was, unsurprisingly, a joint investigation on the part of both the local government and central government ombudsmen.
The investigator was unfortunately ambiguous about the legal landscape for delegation of section 117 services. Although councils can delegate s117 responsibilities under power in the Care Act, ICBs have no apt power entitling them to do so. The reason is that s117 is not a listed PARTNERSHIP Health-related function under the regulations for section 75 integrated delivery agreements and is not governed by NHS legislation. They can, of course, commission help for delivery from an NHS provider, a corporate provider or the local authority, but that is not delegation in legal terms.
The investigator conflates this complex legal governance problem with the accurately expressed position that even where a statutory function is delegated, it does not absolve the delegator from legal liability for public law failings.
Where a person is entitled to s117 aftercare, the responsible council and ICB must ensure there is a timely, lawful assessment and an aftercare plan in place before or at discharge, even though it does not say so in Statute. It says so in the Code of Practice to which professionals must have regard under s118, and in addition, case law says that this duty means that practitioners must follow the Code unless there’s a very good reason why not.
Practitioners must keep that plan under review when circumstances change, including moves between residential and community settings.
Joint responsibility under s117 cannot be treated as a vague background obligation while each body waits for others to act; public law principles concerning joint duties require clear allocation of tasks, documented reasoning, and active oversight of whether something meeting the statutory definition of aftercare is actually required and then being delivered.
Aftercare planning and Care Act processes must run in parallel when different organisations are involved based on ordinary residence for the Care Act and ongoing responsibility of the original s117 council aftercare.
A service designed to support someone with activities of daily living does not count as aftercare unless it meets both limbs of the definition of free Section 117, both of which relate to connection with a mental disorder and the specific statutory purpose.
Community care case law on assessment and eligibility emphasises that councils must assess the impact of needs across wellbeing domains, including mental and emotional wellbeing and suitability of accommodation, rather than artificially splitting needs into silos that suit internal funding tools or panels. Care Act Services are chargeable.
However, mental ill-health and physical problems from the onset of a physical disorder may be incapable of being unravelled, rationally, and thus draw the physical needs into the realm of s117 aftercare.
It is dangerous in legal terms to treat physical needs as irrelevant to aftercare simply because a mental illness diagnosis is “stable” on medication, if unaddressed physical symptoms are likely to trigger relapse or readmission.
Panels, split‑funding tools and internal matrices can support consistency but cannot replace the statutory duties to carry out an appropriate and proportionate assessment, to record needs and desired outcomes transparently, and to give a coherent, evidenced explanation of why a particular mix of s117 and Care Act provision is thought to be sufficient.
The Mental Health Act Code of Practice, sets out the requirements for aftercare planning under s117 using the framework of the Care Programme Approach. The Code encourages local authorities and ICBs to interpret the definition of after-care services ‘broadly’. The Responsible Clinician should ensure that the patients’ needs for aftercare have been fully assessed before they leave hospital. The Care Programme Approach provides detail as to what sort of things could be included in the care plan.
Where family members are providing intensive day‑and‑night care in the absence of an agreed package, councils and NHS bodies should not assume this is a permanent solution; community care law in relation to carers’ rights underline that carers cannot be required to provide support and any plan that relies on them must both record what they are willing and able to do and explain what will happen if that support cannot continue. Failure to assess or support carers in such situations risks shifting statutory duties onto families by default, which runs counter to the principles underlying carers’ assessment and support duties.
The Ombudsman did not reach a conclusion on Mr B’s complaint that Mrs X was denied an advocate, but s117 clients in the community do not get Care Act advocacy, although the guidance to the Care exhorts councils to extend their Advocacy services to s117 clients. They do not get IMHA advocacy either, because they are no longer liable to be detained.
We presume that a conclusion on the direct payment request would follow the care planning stage. The decision would have been for Islington to make, if it was a direct payment under the Mental Health Act, or the local council, if it was for a Care Act direct payment.
Complex cases involving both mental health and physical disability often engage rights to involvement, advocacy and clear communication; if language, capacity or distress make participation difficult, councils and NHS bodies should actively consider statutory advocacy duties and ensure that assessments and planning meetings are not reduced to opaque professional exchanges that families experience as exclusion.
Public law principles and community care law stress that meaningful involvement, proper explanation of the legal position (including the continuing nature of s117 duties, if one moves out of area, privately) and written reasons for key decisions are essential safeguards, not optional extras, especially when disagreements drag on for many months.
In this complaint, three distinct legal issues are engaged.
First, the lawfulness and sufficiency of assessment and aftercare planning: the record shows long delays, failure to integrate physical and mental health needs, and reliance on tools and matrices without a clear, case‑specific explanation, which community care law treats as classic indicators of unlawful or inadequate assessment.
Second, the failure to provide a transparent, reasoned basis for the proposed division between s117 and Care Act funding responsibilities, contrary to public law expectations that decisions affecting how needs are met and charged for must be rational and explained.
Third, the implicit reliance on intensive unpaid care from close relatives without a clear, documented decision about what support is necessary to prevent deterioration, which sits uneasily with community care principles on carers’ rights and the limits of expecting families to plug gaps created by statutory bodies’ delays and disputes.
All of this is particularly concerning given that Islington was the council successfully judicially reviewed in the most recent case law on aftercare Care planning (AK, involving a 16 year old).
The report acknowledges that eligibility for support under the Care Act is determined by different criteria to s117. If something (the service response) is intended to meet a need arising from or related to the person’s mental disorder and will help prevent their re-admission to hospital for treatment, it should be provided through s117, even if it could be provided through the Care Act, in our view, and all the more so where the physical and mental health problems are intertwined. Mr B said that Mrs X’s physical and mental health needs could not be separated, because a failure to manage her physical health needs would directly lead to a deterioration in her mental health. Aftercare entitlement under s117 should be interpreted broadly under the Code and we think Mr B put forward a strong case.
There is a specific duty in s117 (where accommodation is provided as part of aftercare) that any separate Care Act needs are to be the responsibility of the same authority as the 117. So Islington was not wrong, given that Mrs X did not need accommodation in her aftercare package, to look to the local authority where she was Living for Care act needs. Its mistake was entrenchment about the characterisation of the needs and services on one side of the line or the other.
Taken together, these issues suggest that councils, ICBs and Trusts should treat s117 aftercare and Care Act duties where both entitlements arise, as a single, integrated problem to be solved around the person, not as separate budget lines to be bargained over. They should be ready to justify their approach in writing by reference to statutory purpose and recovery or wellbeing impacts rather than internal funding tools. Community care law is the source for that expectation, and it indicates that where disputes about responsibility are allowed to stall practical support while families shoulder the burden, there is a real risk of legal as well as human consequences.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Islington (24 007 618) 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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