We’re delighted to be able to pull together all of the most recent thinking from the Ombudsmen on s117 of the Mental Health Act this week – the aftercare duty, with a special focus on
- what must be done for people with ‘accommodation PLUS…’ profiles of need and how they must be identified;
- the need for a discharge meeting (whether virtual or in person) between the jointly liable authorities, and a written s117 aftercare PLAN
- the application of public law principles when reviewing or revising s117 plans.
We positively WANT you to pass this link on to at least one person in your circle, please – with an invitation to subscribe to the CASCAIDr CIC Alert Service for £30 a year per person.
A. The legal problem identified: unlawful s117 policies, regarding the ‘offer’ of supported living, without considering whether the person’s needs and profile trigger a duty to provide and pay for free accommodation plus aftercare services
A vulnerable woman was wrongly made to pay her own rent after the Council and NHS ICB stopped funding her accommodation, when it de-registered as a care home, contrary to s117 Mental Health Act.
She had been accommodated since 2010 and the care home deregistered in 2019. This forced her to use up her savings and incur legal costs via her Deputy’s challenge. A social worker and a specialist ICB nurse assessor concluded on a review, well into the dispute, that the accommodation should be funded in line with s117. Yet their opinion was ignored, and money was spent on lawyers instead.
The Council and ICB’s assumption that supported living meant ‘ordinary’ housing, was incorrect; the MHA Code of Practice requires a broad interpretation of aftercare, which can include the direct provision of supported accommodation. The absence of any adaptation was not significant for identifying who must get this service.
The Ombudsman found serious fault and ordered full repayment with interest (some £59K), payment of her avoidable legal fees (£9+K) and wider action to put things right. The authorities identified 21 other people similarly affected and committed to redress and re-training of staff as to s117 obligations.
The policy had stated as follows: ‘In rare and unique occasions, it can be assessed that a person’s needs for accommodation fall under the duty of s117.’
All the staff have to do is ensure that the assessment of need is legally literate. The report chimes exactly with the barrister’s advice commissioned by CASCAIDr CIC’s predecessor charity, as its legacy – here.
We think that this LGSCO decision might finally be enough to reach the desks of deputies, everywhere, and that then we will see a change in practice across the sector. It’s very like the Ombudsman’s decision involving Luton Borough Council and Bedfordshire (the Council) and Luton and Milton Keynes Clinical Commissioning Group (the CCG) published in 2022.
This joint ombudsman’s report concerned a woman required by the Council to fund her supported living accommodation, despite her entitlement to s117aftercare. 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 report recounts how the authorities had amended their policy in light of a previous Ombudsman’s decision on this topic, but got the point wrong. The investigator said that the interpretation of the previous decision could not be regarded as consistent with the contents of that report.
The woman 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.
The authorities identified 250 other people potentially similarly affected – some of them will be owed a lot of money.
The Ombudsmen raised the problem of unlawful policies as early as 2021 with other CCGs and local authorities.
The decision involving going back to Lewisham and the South London and Maudsley NHS Foundation Trust (SLaM) and NHS South East London Clinical Commissioning Group (the CCG) Mental Health Trust to force through a change in policy is an indication as to the determination of the Ombudsman to ensure that the law is being complied with. This was also the outcome of the decision involving Warwickshire and its partners in 2023.
We can only suggest that any Councils and ICBs who are labouring under a similar misconception, look at the freely available 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.
The features in the Solihull report, which the LGSCO has taken down for reasons known only to itself, but which we have a pdf of, if it is needed, that constituted a specialised environment were features that went beyond notions of normal shelter. These were 24-hour on site staffing, CCTV, organised activities and a welfare check, all of which had the purpose of monitoring of the client’s mental state and reducing the risk of her mental health deteriorating and a requirement to accept support.
B. One report on failure to DELIVER the accommodation element of the aftercare plan
A vulnerable man, entitled to s117 aftercare, experienced repeated failures in both practical support and communication from Worcestershire County Council.
After years of street homelessness, serious co-morbidities from mental health conditions and addiction diagnoses, repeated bouts of pneumonia and overdoses, an addiction charity was found which was prepared to accommodate him.
The proposed care package was refused by a Panel, however, for lack of confidence in the ability of the apparently willing but untested provider, to cope.
An interim direct payment was foisted on him, which even he knew he would not be able to manage.
These systemic failures left him without stable accommodation, or proper aftercare. He lost any faith in the social worker, and withdrew from engaging.
This was described simply as service failure, although the investigator was impressed at the social worker’s efforts to find a placement.
The report actually recounts the Panel’s reluctance to proceed, as being founded at least in part on the fact that it was the only one available!
That hints, to our minds, at the possibility that it was rejected simply because there were no alternatives, which is a surreal basis on which to continue to leave assessed needs, unmet – compounding the commissioning failure, or the negotiations, which may have been affected by the fee being offered or demanded. The law is likely to be that if there is really only one option for meeting the need that is defensibly suitable, then the cost of it becomes irrelevant – and commissioners (ones who are legally literate) could be aware of that, and unwilling to set a care planning precedent…
Even more bizarrely, given these other LGSCO decisions above, nothing about the ‘accommodation plus services’ profile – other than its existence as a concept – was mentioned by the investigator. The means to deliver the direct provision of accommodation is to contract for occupation rights in a suitable building, taking on the responsibility for the lease, by s117commissioners. In this man’s situation, there was clear professional acknowledgement that he needed 24 hr support from specialists in complex dual diagnosis cases and the environment would be key to making that work. The social worker’s opinion was word-perfect for triggering an ‘accommodation plus’ profile of need:
‘In my opinion, [Mr B] requires a high level of consistent and flexible support that could only be provided in a specialised environment that provides 24-hour support and works with complex cases involving mental health, trauma-informed approaches and substance addiction services…’
C. Three reports on the alleged wrongdoing inherent in the absence of a s117 care planning meeting or a care plan, or in a reduction without a review and a fresh assessment process:
This report concerned West Sussex’s failure to hold a statutory aftercare planning meeting for a person discharged from hospital after detention under the Mental Health Act.
The cause of the woman’s mental health crisis was organic, and once that was identified she was provided with ordinary medical care and became a voluntary patient, albeit in the psychiatric unit. She was then placed in an NHS rehab unit, and her s117 status was lost sight of. She had a house to sell and was temporarily placed in Extra Care and complained about that, and being charged for reablement there, which had already been put right.
The Ombudsman found the Council at fault for not holding a s117 aftercare planning meeting before the individual’s discharge to extra care housing. Such meetings are required to ensure proper aftercare planning for those detained under the Mental Health Act.
But as the individual had a physical condition and her health was improving, the Ombudsman considered it more likely than not that if a s117 discharge planning meeting had been held by February 2020, it would also have concluded that she did not require any specific form of s117 after care at that time.
Therefore, there was no fault when the Council did not fund the individual’s care and support or extra care housing costs, as free s117 aftercare.
ii) City of York
York Council and its partner ICB generated a complaint when they reduced s117 aftercare for an individual with complex mental health needs, including a personality disorder and eating disorder.
The authorities said that the package they were funding was damaging to the client, and would be slowly phased out.
The complainant asserted that this reduction in access to specialist help led to relapse, repeated detentions and impact to wellbeing, and that more help, not less – or better help, was what was needed to make the s117 plan work.
After repeated detentions under s136 or s2 Mental Health Act, the individual was eventually re-sectioned under s3. There was no review involving the individual before hospital discharge, despite leaving hospital being planned to take place on a given date. The Care Plan was completed before any assessment had been done.
The investigator thought that the reductions in s117 care were professionally defensible, but that the failure to review and plan s117 aftercare properly, prior to the later hospital discharge was not compliant with the Code, and was thus ‘fault’.
This report is very like the one involving the Birmingham & Solihull Mental Health Trust (22 015 923a) reported in 2024.
iii) Stoke-on-Trent
The report addressed the complaint of an individual with complex physical and mental health needs about the quality and appropriateness of care received from the Council, NHS Trust, and ICB, after discharge from inpatient mental health treatment.
Within 3 months of moving into supported living, a registration issue arose, to do with a small part of the care plan content, about applying cream to the person’s legs.
Subsequently, the package was reduced by one third, and the person’s wellbeing deteriorated.
The complaint covered alleged failures in aftercare, hours of support, social work provision, suitability of accommodation, psychological therapy, and transport arrangements, highlighting the person’s distress and perceived neglect by professionals.
The investigator found no fault at all in the way the service had responded to a difficult situation, implicitly acknowledging that the parallel Care Act aspect of the woman’s needs was conceptually distinct.
Decisions about practical care tasks, such as application of topical creams, could and should, we think, be managed within the framework of s9needs and s18 Care Act duties, ensuring no eligible need is left unmet due to registration ambiguities at the provider level.
The obligation to secure provision of a nature in the gaps between ‘care’ or ‘support’ or ‘healthcare’ should fall to the council, through what should by now be mature integration and co-operation networks and protocols, not to the service user.
The investigator regarded the request for psychological therapy as outside s117 needs, once the woman had been told that there was no clinical evidence for it, and treated the placing of the woman onto the ‘ordinary’ waiting list (where she waited for much longer than the target of 18 weeks before finally getting a course of therapeutic sessions to assist her confidence in living in the community) as perfectly normal and acceptable.
We think it could have been an opportunity to consider whether putting a person, with s117 rights to aftercare, into the ordinary NHS queue for mainstream CMHT services, was a lawful discharge of the s117 duty, in the first place. We think that the nature of the duties owed is wholly different, and the statutory purposes of specific s117 services and a CMHT’s local offer, are wholly distinct.
Remember, we positively WANT you to pass this link, to at least one person in your circle, please – with an invitation to subscribe to the CASCAIDr CIC Alert Service for £30 a year per person.
Lastly, it’s nearly the last chance to sign up for our Short Course on Direct Payments , commencing 5 November, by the way.
See you there, we hope!