Summary: We uphold this complaint. Miss A’s supported housing met the definition of aftercare for the purposes of section 117 of the Mental Health Act 1983 and the Council was at fault in declining to fund it on the basis that Miss A chose to move to supported housing and could have a different care provider from her landlord. Those were not the correct legal tests to determine aftercare. Miss A has suffered a financial loss. The Council will refund the payments she has made to date and make arrangements to fund future housing costs. It will also apologise and pay Miss A £500 to reflect her avoidable distress.

The complaint

1. Miss A’s deputy, Ms C, complains Solihull Metropolitan Borough Council (the Council) decided Miss A’s supported housing was not aftercare and so refused to pay for the rent and service charge.
2. Ms C wants the Council to refund the rent and service charge she says Miss A should not have paid. She also wants the Council to pay Miss A’s rent and service charge from now on.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered the complaint to the Ombudsman, the Council’s responses to the complaint and documents described later in this statement. Both parties received a draft of this statement and I took comments into account.

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What I found

6. Section 117 of the Mental Health Act 1983 imposes a duty on health and social services to meet the health and social care needs arising from or related to a person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act. Services under section 117 are called aftercare. They are free and councils and Clinical Commissioning Groups (CCGs) provide or arrange them jointly. Aftercare must meet a need arising from or related to the person’s mental disorder. 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.
7. The Code of Practice to the Mental Health Act says:

“CCGs and local authorities should interpret the definition of after-care services broadly. For example, aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition... As well as meeting their immediate needs for health and social care, aftercare should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.

8. When a person lives in supported housing as part of their aftercare, the Council and CCG should pay the housing costs. The person should not have to claim housing benefit for this.
9. A reported court case set out the criteria for when housing will form part of aftercare. The judge in the case said housing is a common need and for it to be an aftercare need, it had to be ‘accommodation plus’. This means it had to be specialist housing to meet a need arising from the person’s mental disorder: the person’s need for accommodation must be over and above everyone else’s common need for shelter. (Mwanza v LB Greenwich)
10. A second reported case about a man entitled to aftercare who then became in need of specialist housing because of a brain injury said housing could only be aftercare if:
• The need for housing was a direct result of the reason that the person was detained in the first place;
• The requirement was for enhanced specialist housing to meets needs arising from the original condition; and
• The patient was being placed in the housing because they lacked mental capacity as a result of the original condition. (Afework v Camden LBC)

What happened

11. Miss A has mental health problems and gets aftercare services. Until 2015, Miss A lived in a care home. The Council arranged and paid for this placement. The care home closed down and Miss A moved into specialist supported housing for adults with mental health problems.
12. Miss A has a deputy who manages her finances and who has complained to us on Miss A’s behalf. The Court of Protection appoints deputies to manage the finances of adults who lack mental capacity to do so. Ms C signed Miss A’s tenancy agreement which says:

“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.”

13. The landlord and care provider are part of the same organisation. An information leaflet about the supported housing scheme says

“our key aims and objectives are to provide accommodation and support to adults with a history of severe and enduring mental health needs; to create an environment in which people can develop and improve their skills to live more independently……

14. The leaflet went on to explain there was a basic placement charge funded by social services to cover support staff available on site, CCTV monitoring and a daily welfare check as well as a programme of activities delivered in shared areas and support to move on to other accommodation. People may also receive an additional care package from social services. This could be delivered by staff at the supported housing project or another care provider if the client preferred.
15. Ms C claimed housing benefit for Miss A which paid her rent. The Council arranged and paid for Miss A’s care.
16. Miss A’s care plan of 2016 said:
• Miss A lived at X House with a full care package. Her mental health was stable;
• Miss A’s Community Psychiatric Nurse monitored her medication. Staff administered it;
• Staff provided support with personal care and hygiene needs, laundry and cleaning; and
• Staff supported her with shopping, budgeting and managing her money.
17. There were yearly reviews of the care plan. The 2018 review noted Miss A had 30 hours of one to one support a week. There were no changes needed to the care plan.
18. Miss A inherited some money. This meant she was no longer entitled to housing benefit. Miss A had to pay back an overpayment of housing benefit in May 2018 and has been paying for her housing costs from the inheritance since then.
19. Ms C complained to the Council about the issues she raises with us. The Council’s first response said:
• It paid the full costs when Ms A was in a care home because there was no option of separating the rent and care costs;
• The care home closed down in 2015. Ms A chose to move to supported housing. This meant she was responsible for paying the housing costs;
• Ordinary accommodation needs were not mental health needs and so did not qualify under section 117;
• Section 117 was not concerned with the provision of support in general but with a service necessary and tailored to meet need arising from a person’s mental disorder; and
• Payment of rent was not a mental health need. The authority paid the weekly flat rate fee to cover a daily safe and well check, access to daily activities and 24 hour staffing. On top of this, Ms A had a care package to provide her with one to one support.
20. Ms C said she was not happy with the Council’s response. She said Ms A’s landlord was also her care provider and this was not ordinary accommodation as provision of support was part of the tenancy agreement.
21. The Council’s second response did not uphold the complaint and said:
• Ms A was in supported housing, but the tenancy agreement did not say the landlord had to be her care provider. It could be a different care provider; and
• The care provider had not sought possession for any tenant who had refused to engage with care.
22. Unhappy with the Council’s final response, Ms C complained to us.

Was there fault?

23. 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.
24. I find Miss A’s supported housing is part of her aftercare. I have taken into account that:
• The previous residential placement was funded wholly by the Council and Miss A did not pay a charge. Residential care is a chargeable service and so the Council must have regarded it as a section 117 service for Miss A else it would have charged her for it. I am not persuaded by the Council’s argument that it ‘could not separate the care from the housing’ when Miss A was in residential care.
• Miss A did not ‘choose’ to move to the supported housing placement; her views were sought, but she lacked mental capacity. Whether she chose the placement or not is irrelevant for the purposes of a complaint about aftercare
• The supported housing scheme is designed to meet the housing and care needs of people who have severe and enduring mental health problems. Miss A was only placed there because of her mental disorder. I cannot see why she would have been placed there otherwise.
• The fact that tenants are not contractually required to have their landlord as the care provider is a red herring. Housing is not normally aftercare, but it can be in some cases depending on the nature of the service. The legal tests for when housing can amount to section 117 aftercare are set out in two legal cases and in the Code of Practice to the Mental Health Act. The accommodation needs to have additional features to it as compared with mainstream housing and those features must arise from or meet a need from the person’s mental disorder – over and above a basic need for shelter. In this case, the special features of the accommodation are/were: 24-hour on site staffing, CCTV, organised activities and a welfare check, all of which have 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.
• Miss A’s overall care package is entirely different from support from carers which could be delivered in mainstream accommodation which would not have CCTV, a welfare check, organised activities or 24-hour staffing on site. I am satisfied Miss C’s accommodation meets the descriptors in the Code of Practice to the Mental Health Act and in the two legal cases quoted in paragraphs nine and ten.

Agreed action

25. The Council will within one month refund Miss A’s housing and service charge costs paid to date and arrange to fund the same in future, while she remains eligible for aftercare services. It will also refund an overpayment of housing benefit recovered from Miss A in May 2018. It will also apologise and pay Miss A £500 to recognise her avoidable distress.

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Final decision

26. We uphold this complaint. Miss A’s supported housing met the definition of aftercare for the purposes of section 117 of the Mental Health Act 1983 and the Council was at fault in declining to fund on the basis that Miss A chose to move to supported housing and could have a different care provider from her landlord. Those were not the correct legal tests to determine aftercare. The Council should not have required Miss A to claim housing benefit and should not have made her pay the housing and service charge when she became ineligible for housing benefit. Miss A has suffered a financial loss. The Council will, within one month, refund the payments Miss A has made to date and arrange to fund future housing costs. It will also apologise and pay Miss A £500 to reflect her avoidable distress.
27. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman