The Ombudsman's final decision:
Summary: Ms A complains the Council has wrongly decided not to fully fund her s117 aftercare by refusing to pay for her accommodation. A challenge against the Council’s interpretation of the law is a matter for the courts and not the Ombudsman and so we will not pursue the complaint any further.
- Ms A complains the Council has wrongly decided not to fully fund her s117 aftercare by refusing to pay for accommodation costs over the last six years. The three-stage test set out in the legal case of “Afework” is satisfied and the refund should be made.
The Ombudsman’s role and powers
- We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- In considering the complaint I spoke to Ms A’s representative, Ms B, and reviewed the information she and the Council provided.
What I found
- Up until 2007, Ms A, who is bi-polar, has a mild learning disability, autism and type 2 diabetes, lived with her father. After he died she continued to live in the family home and started receiving care services in 2008. However, in 2010, as there was a deterioration of her mental health and she failed to take her medication and manage her diabetes, she was admitted for treatment under section 3 of the Mental Health Act 1983.
- Section 3 of the Act allows for the detention of a person for the purpose of providing treatment. Before the person is discharged, a social care assessment takes place to assess if they have any social care needs that should be met. People who are discharged from a section 3 will not have to pay for any aftercare they will need and this is known as section 117 aftercare.
- While an inpatient Ms A needed ongoing support to comply with her medication, manage her diabetes and to implement consistent routines in relation to her personal care and daily living activities. It was during this period of admission that Ms A was diagnosed with autism.
- In 2011 Ms A was assessed as being fit for discharge from hospital but on the basis that she required residential care provision with 24-hour support. She was assessed as lacking capacity to make an informed decision about where to live and she was placed in a residential care home where she continues to live.
- Ms A’s sister, Ms B, who acts as her representative, contacted the Council in 2017 to complain that the charges made for Ms A’s accommodation for the last six years should not have been made because Ms A came under the scope of section117 aftercare.
- The Council upheld the complaint and found it had charged Ms A inappropriately because account had not been taken of her entitlement to section117 aftercare and it told Ms B that a full refund would be made.
- However, about 6 weeks later, the Council wrote to Ms B to withdraw its earlier decision and to confirm it would not now be paying for the accommodation or making a refund. It explained that while the social care assessments completed for Ms A made reference to the fact that she is entitled to section117 aftercare, this did not automatically mean this extended to the provision of accommodation. It went on to explain that section117 only extends to the provision of accommodation if the requirement is for specialist enhanced accommodation that meets a need that arises from a person’s mental disorder which is over and above the normal human need for basic shelter and housing.
- In response to my enquiries on the complaint, the Council further clarified that while there was no dispute that Ms A did meet the eligibility for funded care and that she does have support in her accommodation, it did not view it as specialist accommodation. The Council quoted from a court case from 2013 (Afework EWCH 1637(Admin)) in which the judge had set out a three-stage test that applied to the engagement of section117 aftercare services in connection with accommodation.
- The Afework test is that: i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place (“the original condition”); ii) the requirement is for enhanced specialist accommodation to meet needs directly arising from the original condition; and iii) the ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition”.
- It is clear Ms A’s situation is complicated by the fact that she has the lifelong condition of autism which was not fully diagnosed until more recently, as well as learning difficulties which pre-date the point at which she was detained under section 3 and it is difficult to untangle each of her problems to understand which need arises from which difficultly.
- The Council has relied on the Afework case and its three-stage test to decide that it is not liable to fully fund her s117 aftercare and pay for her accommodation costs. This is the Council’s interpretation of its legal position.
- The restriction highlighted at paragraph 2 applies to this complaint because if Ms B wants to challenge the Council’s legal position here she can take the case to court where the courts will make the final determination on the matter. As Ms B has this legal remedy available to her which we would reasonably expect her to make use of the complaint will not be pursued any further.
- A challenge against the Council’s interpretation of the law is a matter for the courts and not the Ombudsman and so we will not pursue the complaint any further.
Investigator's decision on behalf of the Ombudsman