Solihull Metropolitan Borough Council at fault for failure to FUND a supported housing placement for a s117 client

Upheld 02/10/2019

What happened

Miss A had been compulsorily sectioned for a mental health condition and received free aftercare under S117 Mental Health Act from the Council for a placement in a care home.

In 2015, the care home closed and Miss A then moved to supported accommodation for people with mental health conditions. Ms C (Miss A’s deputy for finances appointed by Court of Protection) arranged for housing benefit for Miss A until Miss A received an inheritance.

In May 2018 Miss A was ordered to pay back an overpayment of housing benefit and then needed to pay for her ongoing housing costs through her inheritance.

Miss A received a 30 hour per week one to one s117 aftercare package from an organisation which comprised housing and support arms. It purported to provide support rather than care but the contents of this woman’s care plan had remained unchanged from 2016 from when she had been living in a care home:

  • Staff provided support with personal care and hygiene needs, laundry and cleaning; and
    • Staff supported her with shopping, budgeting and managing her money.

Ms C complained to the council on Miss A’s behalf because the Council would not pay Miss A’s rent or service charges as they claimed those liabilities were not part of her aftercare, while Ms C argued that if the accommodation costs were paid in a care home it was appropriate to pay costs in specialist supported housing. Ms C also made a claim for repayment of the housing benefit paid through Miss A’s inheritance and the overpayment that Miss A had been required to return.

The council responded saying that the costs in Miss A’s previous care home were paid because there was no way of separating out the accommodation and care costs in that context; Miss A chose to move to supported housing by signing the tenancy so she was responsible for paying housing costs; ordinary accommodation needs were not covered by S117 as they were not mental health needs; S117 only supports needs arising from a person’s mental disorder; and payment of rent was not a mental health need. But the Council agreed to pay the flat rate weekly fee to cover a daily self and wellbeing check, access to daily activities and 24 hour staffing. The care package of 30 hours remained the same.

Ms C complained again, saying that the tenancy agreement provided accommodation and care and support as part and parcel of the same contract, and terms provided that the company may repossess the property if another care provider was sought.

The council still rejected the complaint saying that the tenancy agreement did not require that the care provider must be the same as the landlord and that the company had not sought repossession from anyone who refused care.

However, a copy of the tenancy agreement signed by Ms C did state as follows: “Obligation to accept support: The provision of support services is a fundamental part of this tenancy agreement. You agree to accept the support services provided. If you fail to accept the support services we may seek an order for possession.”

When the council rejected Ms C’s complaint, she approached the Ombudsman.

What was found

  • Care planning for aftercare takes place under the Care Programme Approach (CPA) framework. The person must have a care plan to document aftercare which should say which services will be section 117 funded. Ms A’s care plan did not set out her entitlement to aftercare services or specify what those aftercare services were. The care plan should have set out Ms A’s aftercare. This was fault which caused avoidable confusion and led to this complaint.
  • Drawing from the Mental Health Act S117 and its Code of Practice, the Ombudsman confirmed that if a person needs to live in specialist supported housing in support of their mental health aftercare needs, then the Council and CCG should pay the housing costs. The person should not have to claim housing benefit.
  • Mwanza vs LB Greenwich and LB Bromley (2010) sets out the criteria by which housing costs can end up needing to be met under S117 aftercare.
  • Afework vs Camden LBC (2013) is another case about the difference between ordinary housing needs and having a mental health aftercare need for housing, arising out of a brain injury. In this case, a duty to include accommodation within the s117 package was rejected because the need for accommodation related to the brain injury rather than the pre-existing mental health disorder. (However, the law has changed and the Care Act amendments do not require the aftercare to be needed for the same condition that one was sectioned for now, please note).
  • It was not a satisfactory argument to say that in a care home it was not possible to separate care and housing costs as opposed to the situation in supported housing. That is not the test of what is needed by way of aftercare. Nor that she chose to live there. She was placed there, in reality: “Miss A was only placed there because of her mental disorder. I cannot see why she would have been placed there otherwise.”
  • Furthermore, the supported housing was clearly presented as offering an integrated service of care and accommodation for people with enduring mental health disorders. 
  • Miss A did not have the mental capacity to choose her accommodation even if she was consulted on it.
  • Miss A had been placed in a supported housing scheme to support her mental disorder making her housing costs eligible for S117 aftercare funding. 
  • The Ombudsman was satisfied that Miss A’s overall care package was entirely different from one that would be delivered in mainstream accommodation with a package of care.  Inclusion of Miss A’s accommodation costs were in accordance with the Mental Health Act, Code of Practice and the two court cases cited.

Agreed outcomes

Within one month, the Council will refund Miss A’s housing and service charge costs paid to date and arrange to fund these costs in future, while she is eligible for aftercare services. The Council will apologise and will repay the overpayment of housing benefit made by Miss A in May 2018 and also £500 in recognition of Miss A’s distress.

Comments for Public and Health and Social Services

  • The LGO is pointing out that it should not be assumed that accommodation cannot be funded under S117 Mental Health Act. Specialist accommodation that supports mental health aftercare needs and the statutory purpose is capable of being an aftercare purpose and should be funded. The Mental Health Act Code of Practice 33.4 includes supported accommodation in its list of possible services for funding provided it is for mental health aftercare purposes.
  • This legal necessity to provide housing directly, and pay for some or all of it, can actually arise we think, if a suitable tenancy  in a supported living house, with a specialist provider in situ, either
    • cannot be accessed within a reasonable time, (because there’s no vacancy local to where the rest of that person’s life needs to be run from)
    • or is not being regarded as part of a scheme that is ‘affordable’ by the commissioners
    • or is not accepted as suitable, by willing clients with capacity, or by the proxies of people lacking in capacity to understand the nature of a tenancy
  • or if the intended tenant won’t apply for Housing Benefit, or (even if it’s applied for by an appointee) won’t qualify for Housing Benefit!

Who needs a specialist roof?

  • Of course, the vast majority of people who need accommodation on discharge, but not in a care home, WILL need a roof that provides the setting for aftercare services – from specialist mental health providers whose task is supervision and prompting and monitoring. Here the LGO listed the specialist features: the special features of the accommodation are/were: 24-hour on site staffing, CCTV, organised activities and a welfare check, all of which had the purpose of monitoring Miss A’s mental state and reducing the risk of her mental health deteriorating. These features are not available in mainstream housing.”
  • People in this situation should not be expected to contract in their own names for Housing. They should be placed by dint of the council making the arrangement with the housing provider, and permitting the person to occupy under a licence for as long as they qualify for aftercare.
  • A need for proper supervision and support in terms of time or reaction speed are the indicators for a need for specialist housing.
  • If living rights in a building have to be in a person’s package, in order for the rest of the package to work, it has to be paid for by the s117 budget.
  • This is a bit like the test under the old law, for being in need of care and attention that would not otherwise be available if it were not for the authority’s arrangement of registered OR unregistered accommodation (s21 NAA). If the person does not need specialist accommodation then Housing is something that the person can be helped to find, by supporting them to apply as  homeless, or otherwise deserving of points in the Housing Register system, or nominating them to specialist mainstream supported living under the Care Act. But that doesn’t count as providing the housing within the plan. Providing means commissioning or funding it, here.

Registration implications

  • If councils and CCGs paid for occupation rights for individuals under s117, the accommodation element would not then get fatally mixed up with or interdependent on the care. The Landlord would be the Local Authority and the licensee can receive care – even care that counts as personal care, through a contract with a care provider.  That is the provision of care in the place where a person lives, and it is not unlawful for it not to be registered as a care home.
  • If a tenancy between the person and a business taking a property on a long lease stipulates that the tenant must accept support services, to get the tenancy, and the support services amount to personal care, that is the same scenario as was outlawed in Alternative Futures many years ago – that would be unlawfully unregistered (criminal) care home care based on a de factor integration of the two elements.

Impact of this decision, potentially

  • The clients most crucially affected by the legal questions lurking in this report are young people trapped in ATUs or adults’ psychiatric facilities with s117 Mental Health Act status for aftercare purposes.
  • The thrust of this report would completely solve the Transforming Care queue – councils could just contract for spaces in which to accommodate people and arrange appropriate services to go in, like a home care model, instead of pretending that they are dependent upon specialist care providers and housing associations to do deals for nominations and voids guarantees. Sir Stephen Bubb’s vision for creating a source of private investment in housing for this cohort has not worked and is seriously open to challenge because of the tying together of the care and accommodation element arrangements, in practice.
  • We think that social services councils and CCGs DO – just sometimes – have to buy into unregistered property – or rent unregistered property – in which to place someone – for the essential underpinning to a person’s s117 care package. We think that legal literacy and well-informed advocacy and co-operation between housing, social services, mental health and health service professionals, is the only way to solve the crisis in Transforming Care.
  • If it CAN be done, then the next question is when SHOULD it be done? It’s almost impossible to think of people with autism and challenging behaviour NOT needing 24 hour supervision and that is meaningless unless it’s under a stable roof.
  • And after that question, this one: what is the sanction for not doing it or not considering doing it, unlawfully, in public law terms, now that restitution has been said to be the ordinary consequence of public law illegality in CP v NE Lincs? People will have mouldered in psychiatric hospitals for want of a roof, or paid through HB for the privilege of being told which one to go and live in, and both positions seem wrong to us.
  • We absolutely agree with the LGO that is not lawful for authorities to decline funding on the basis that accommodation and care provision “is treated separately” for the purposes of S117 aftercare. That is the culture, certainly, but it is not the law. It is much more subtle than that: everyone needs a roof, and some people need a roof to stop them being readmitted to hospital, which is a need for a roof by way of aftercare, but even if they do, taking a tenancy IS a viable choice, and the result is not a placement at all; the housing is not then provided BY the s117 council and CCG, and the rent would not be in the package.
  • The LGO investigator has not addressed the inconsistency of the Deputy here having contracted for a tenancy whilst at the same time contending for the rent to be paid as if the s117 team was the contractor for the accommodation. An organisation can’t contract for a tenancy ‘for’ somebody else, in English law. An organisation can contract for the right for a person to occupy someone else’s building with permission, but it won’t be a tenancy.
  • The LGO investigator does not address the point that many people discharged on to s117 might WANT a tenancy, in to which specialist services are being SENT, or at least does not MIND signing up for one. It has never been the law that a liable body is obliged to provide that which a person willingly provides for themselves, however much it is needed / the person has eligible needs for it (eg under the Care Act).

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The full report can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-160

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