Section 117 of the Mental Health Act 1983 (“MHA”), entitles ex-patients, who were detained in hospital under the MHA (and who are deemed eligible), to receive fully funded help and support following their discharge. This is known as Section 117 Aftercare and relates to healthcare, social care and supported accommodation.

The purpose is to provide services to meet a need arising from or relating to a person’s mental disorder and to mitigate the risk of their mental condition deteriorating or leading to readmission. Section 117 places an enforceable duty on both health and social services to provide this support.

For more details about who is eligible, how the Aftercare needs are assessed and what is included in Aftercare Services, please refer to our information sheet.

What Issues Commonly Occur with Section 117?

Section 117 Aftercare is often overlooked when patients are discharged from Hospital, leaving vulnerable people without the services they need. Many patients also struggle to self-fund their care, not realising that the Local Authority are duty-bound to provide it. Disputes also tend to arise in relation to whether a patient requires ‘specialised accommodation’ to meet their Aftercare needs.

A recent complaint to the Local Government and Social Care Ombudsman (“the Ombudsman”) dealt with some of these common issues and has been found in favour of the ex-patient.

LGSC Ombudsman Complaint – Solihull Metropolitan Borough Council (19 002 160)

The Issues

Miss A has mental health problems and is entitled to Section 117 Aftercare. Until 2015, Miss A had lived in a care home which was funded by the Council. Following its closure, Miss A moved to specialist supported housing for adults with mental health problems. Miss A’s tenancy agreement, included care provided by the same organisation as the landlord (although there was the option of using an alternative provider).

Miss A received housing benefit which covered her rent and the Council paid for her care. In 2018, Miss A inherited some money and was no longer eligible for housing benefit. She had to pay back an overpayment of housing benefit and paid for her housing costs from her inheritance.

Miss A’s Deputy, Miss C complained to the Council, who argued in their responses that they were not required to pay for Miss A’s ordinary accommodation needs. They explained that these had only been covered previously because it was not possible to separate the housing and care costs. The Council argued that because Miss A had the option of seeking an alternative care provider to her landlord, the two costs could be separated.

Unhappy with their responses, Miss C complained to the Ombudsman. The Ombudsman applied the following tests under the Code of Practice to the MHA which set out the circumstances under which housing can amount to Aftercare:

• Accommodation Plus: the accommodation needs to be more than ordinary housing, i.e. specialist, to meet needs arising from the mental disorder, over and above the standard need for shelter and housing.
• Mental Condition: the need for accommodation must be a direct result of the reason that the ex-patient was detained under the MHA and arising from their mental condition.

In this case, Miss A’s accommodation satisfied the above tests as it provided 24 hour on-site staffing, CCTV and welfare checks, all of which were required to monitor her mental state and any signs of her condition deteriorating. Such features would not be available in ordinary housing and satisfied a need arising out of her reason for her original detention under the MHA.

The Outcome

The Ombudsman upheld Miss C’s complaint and concluded that the Council was at fault for falling short of their duty under Section 117.

It has been agreed that the Council will:

• refund Miss A’s housing and service charge costs paid to date within one month;
• continue to fund her housing costs, all the while that she remains eligible for Aftercare Services;
• refund an overpayment of housing benefit which Miss A was required to pay in May 2018; and
• apologise to Miss A and provide her with £500 to recognise her “avoidable distress”.

This complaint provides a clear example of when the Local Authority will be duty-bound to meet accommodation needs under Section 117 of the MHA.

If you require any support in understanding when these legal tests can apply or if you are experiencing any other issues relating to Section 117 Aftercare support, our community care solicitors are available to provide you with highly experienced and relevant advice and support. If you would like to speak to one of the team, please call 01202 786161 or email communitycare@la-law.com