Summary: Mr Y complained that the London Borough of Richmond upon Thames and NHS South West London Integrated Care Board did not pay the rent for his daughter’s specialist accommodation, despite it being part of her section 117 aftercare needs. We found fault with the Council. It managed the process of identifying and securing Miss X’s accommodation and should have included rent, and associated costs, in its costings and should have paid them from the outset. It should not have made the person liable for the rent and expected them to apply for benefits to fund it. This fault caused Mr Y avoidable stress and inconvenience. We have not found fault with the ICB as it did not make the decisions we found fault with.

The complaint

1. Following a lengthy mental health admission under section 3 of the Mental Health Act 1983 (the MHA), Miss X moved to a supported living placement (the Placement) in the spring of 2024. Miss X was 17 at the time and turned 18 a month later.
2. Miss X became eligible for aftercare under section 117 (s117) of the MHA when she left hospital. The London Borough of Richmond upon Thames (the Council) and NHS South West London Integrated Care Board (the ICB) are responsible for ensuring Miss X receives appropriate aftercare.
3. Mr Y, Miss X’s father, complains that, prior to Miss X’s transfer from hospital, the Council and the ICB failed to agree how they would fund the Placement when Miss X became an adult. Mr Y said this was despite plans for the placement to be a long-term one, and despite Miss X’s eligibility for s117 aftercare. Further, Mr Y complains that, after Miss X turned 18, no one took any action to ensure the Placement was properly funded.
4. Mr Y said that, as a result, no one paid anything toward the costs of Miss X’s rent, bills or care from the date of her 18th birthday. By the time of his complaint to the Ombudsmen, in December 2024, this remained the case. Mr Y said this, in turn, led the Placement to:

• ask Miss X to pay over £10,000 in arrears,
• sign a tenancy agreement which she would not be able to afford, and
• threaten to terminate Miss X’s placement.

5. Mr Y said these events caused him tremendous stress. Also, Mr Y said that if Miss X was evicted it would be detrimental to her mental health and could potentially risk her life.
6. Further, Mr Y complains the Council did not respond adequately to his complaints. He said this led him to hire a solicitor to liaise with the Council. Mr Y said this, in turn, put financial pressures on his family.

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The Ombudsmen’s role and powers

7. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
8. We may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, section 26A(2)) (Local Government Act 1974, section 26A(1))
9. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
10. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
11. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
12. We cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the bodies made their decisions.
13. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

14. I considered evidence provided by Mr Y including copies of correspondence he provided. I asked the Council and the ICB questions and for supporting information and considered all the information they supplied. I also considered relevant law, policy and guidance, and legal advice from a previous case about similar issues.
15. Mr Y, the Council and the ICB all had an opportunity to comment on my draft decisions. I considered all the comments I received about them before making a final decision.

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What I found

Relevant law and guidance

Section 117 of the Mental Health Act 1983

16. Section 3 of the MHA allows people to be detained in hospital for treatment necessary for their health, safety or for the protection of other people. S117 of the MHA imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 3 of the MHA. Councils and ICBs (which have replaced Clinical Commissioning Groups) cannot delegate these aftercare duties, regardless of the day‑to‑day arrangements for delivering a person’s aftercare. In view of this, the relevant council and ICB will always be included in Ombudsmen investigations about s117 aftercare.
17. S117 of the MHA requires councils and ICBs to provide free aftercare services to certain people. They must provide these services from the point the person leaves hospital until the council and ICB decide the person no longer needs them.
18. S117 services are defined as services which: meet a need arising from, or related to, the person’s mental disorder; and, reduce the risk of a deterioration in the person’s mental condition and, accordingly, reduce the risk of the person needing to be readmitted to hospital for treatment of a mental disorder.
19. The Mental Health Act 1983: Code of Practice (the Code) is statutory guidance. This means that councils and relevant NHS health authorities must follow it, unless there are good reasons not to. The Code gives some guidance on s117 services. It also notes that aftercare can “encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs” (Section 33.4 of the Code).
20. For accommodation to be included in a s117 plan it should be "accommodation plus". In other words, specialist enhanced accommodation that meets a need related to the person's mental disorder.
21. In 2022 LGSCO and PHSO issued guidance on Section 117 aftercare. In a section on accommodation, on page 7, this said “Where the person lives in specialist accommodation as part of their Section 117 aftercare arrangements, the council and/or [ICB] should pay for this. The person should not be expected to claim housing benefit.” This refers to situations where the person lives in specialist accommodation because of their mental health condition, and it is included as a requirement in their s117 aftercare arrangement.

Transition from children to adult care services

22. When a child reaches 18 years old they are legally an adult. Responsibility for meeting their needs moves from a council’s children’s services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
23. Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18.
24. If transition assessment and planning is carried out as it should be, there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, a council must continue providing the services under children’s legislation until the adult care is in place or until it decides the young person does not have eligible needs.

Local arrangements for identifying, securing and paying for s117 aftercare

25. The ICB told us that, when a service user is eligible for s117 aftercare, the Council leads on:

• identifying potential suitable placements and care providers,
• making the arrangements for the person’s s117 aftercare, including discussing fees and costs, and
• actually making payments to providers.

26. The ICB said that once support is identified and costed:

• the Council and the ICB agree on a percentage of the costs that each organisation will pay, and
• the Council pays the relevant invoices and then re-charges the ICB for its share of the costs.

27. The ICB noted that each organisation may have its own discussions about further splitting the costs between departmental budgets. I.e. between children’s and adult services.

Brief history of events

28. Professionals detained Miss X under the MHA in 2020. In May 2023 Miss X’s inpatient clinical team referred Miss X to the Council’s Children’s Services for support to plan her discharge from hospital. Miss X was 17 years old. In September 2023 Children’s Services:

• completed its assessment of Miss X’s social care needs,
• began searching for possible placements, and
• referred Miss X to the Council’s Adult Services. It noted that Miss X would soon turn 18 and there needed to be discussions about her transition to their care.

29. Also in September 2023, Miss X’s clinical team decided that Miss X was clinically ready to leave hospital.
30. In November the Placement provided a service proposal to Children’s Services. In late December Children’s Services met Adult Services to discuss the proposed Placement. Adult Services considered the proposal was too expensive.
31. In early January 2024 the Placement submitted a new proposal which was less expensive. Children’s Services noted internally that “Costs will be apportioned to enable Universal Credit to pay rent contribution etc”. Later that month a joint Council and ICB panel did not agree to the proposal. It did not consider it to be a viable long-term solution because of the costs. The panel asked Children’s Services to complete further searches.
32. In February 2024 Children’s Services put forward another funding request for Miss X at the Placement. Adult Services said they remained concerned about the proposed costs, which they would become responsible for after Miss X turned 18 in May. A joint ICB and Council panel agreed to the Placement in principle. They noted several actions that still needed to happen, including further discussions with Adult Services.
33. Later in February Adult Services asked Children’s Services for more information about the Placement. They asked to clarify that, if it was a supported living placement, “the rent will be covered by housing benefit / universal credit”. They also said “There may need to be a piece of work supporting [Miss X] to apply for benefits as part of discharge planning…This needs to be set up correctly from the start”. Children’s Services replied and said “once and if [Miss X] is able to claim universal credit rent will be covered by [Universal Credit]”. They also noted that, at present, Miss X was not in receipt of benefits “so this is being covered by [the Council].”
34. Around this time Adult Services also began a dialogue with Children’s Services to ask them to continue contributing to the cost of the Placement for a period after Miss X turned 18, because of the high costs.
35. In early March Adult Services noted internally that they needed to “think carefully about this one as we had expressed real concerns about the proposal”. A colleague agreed that “this is a very high cost placement that is proceeding despite our concerns”. They asked Children’s Services for a final breakdown of the costs. Children’s Services provided this a few days later. In response, Adult Services maintained that the rent element was “extremely high” and “will need to be paid via housing benefit/universal credit”. Children’s Services again noted that “This is a supported living placement and once and if [Miss X] is able to claim universal credit rent will be covered by [Universal Credit]. At this stage she is not claiming benefits so this is being covered by [the Council].”
36. Miss X left hospital and moved to the Placement at the start of April 2024. In an email toward the end of May, Adult Services noted internally that the move started “without explicit funding confirmation” from Adult Services. Children’s Services and the ICB split the total cost of the Placement until the end of April, including Miss X’s rent.
37. In mid‑April an Adult Services social worker visited Miss X to assess her needs. She noted that Placement staff told her that Miss X had applied for Universal Credit and Personal Independence Payments. Toward the end of the month a manager at the Placement confirmed this. However, to our knowledge these applications, if they were made, did not lead to an award of Universal Credit.
38. Adult Services created an Assessment and Support Plan in late April. In a section about the costs of the Placement the plan only included the cost of Miss X’s one‑to‑one support each week. It did not include rent or other associated costs. The plan noted “We cancelled the rental, service charges, and allowance deductions”. It also noted an expectation that, by the time of a six-week review, the Department of Work and Pensions should have begun making benefit payments to Miss X.
39. At the end of April the Adult Services social worker emailed colleagues and noted that Miss X would turn 18 at the start of May. The social worker noted a plan to present Miss X’s case to a panel to get agreement for funding. They noted Miss X was still waiting to get a response to her Universal Credit application.
40. Adult Services restarted discussions with Children’s Services about splitting the Council’s contribution to the cost of Miss X’s placement for a period after Miss X turned 18. Adult Services noted they were pushing for this, even though it was not usual practice, because “we did not agree to this placement”.
41. Miss X turned 18 at the start of May. She continued to live at the Placement.
42. In the middle of May a joint Council and ICB panel discussed Miss X’s care. They agreed to fund the amount listed in the Assessment and Support Plan. Adult Services noted their intent to have further discussions with Children’s Services about sharing the Council’s costs. They also noted they intended to start negotiations with the Placement to reduce the costs.
43. Adult Services contacted Children’s Services and noted concerns that Miss X had not been referred to them early enough. They acknowledged that “were made aware of the discharge planning” and were “part of some discussions about it”. They said they raised concerns about the proposals and maintained that they never explicitly agreed to them.
44. Toward the end of May the ICB contacted the Council with a query about the funding arrangements. In their email they quoted the cost of the Placement as the amount included in the Adult Assessment and Care Plan; i.e. the cost of Miss X’s support but not including rent and other costs.
45. Also at the end of May, the Placement produced a revised breakdown of its fees and sent it to Adult Services. It said it understood the Council had understood and agreed to this. The breakdown included: “Rent is £ ----- per month, to be claimed through [Universal Credit] or Housing Benefit. Client is liable to pay her rent. Staff will support client to make claim from [the Jobcentre Plus] / application for the rent.”
46. In the second half of June Adult Services and Children’s Services agreed that they would equally split the Council’s contribution toward the cost of Miss X’s care for May, June and July. They also agreed they both needed to learn from the case in terms of improving transitional arrangements.
47. In July the Placement emailed Mr Y and said they wanted to check “that when you are reapplying for Universal Credit/[Personal Independence Payments] that you are aware of costs for rent for the house”. They detailed the weekly rent along with the weekly charge for utilities, rates and services.
48. Also in mid‑July, Adult Services noted internally they needed to “work out invoicing arrangements”. In mid‑August Children’s Services said its finance team would recharge Adult Services.
49. At the beginning of September the Placement told Mr Y that no one had paid Miss Y’s rent or bills to them since May. The Placement said Miss Y was responsible for paying the accrued debt and the fees going forward. The Placement said “rent payments are not the responsibility of any adult social work team”. It drew up a license agreement for rent and utilities and said it needed to be signed. The Placement said if the outstanding debt was not cleared and the license agreement was not signed it would have to ask Miss X to leave at the end of the month.
50. There was a professionals meeting at the end of September. A social worker was tasked with asking Mr Y to complete applications on Miss Y’s behalf for Housing Benefit and Universal Credit. The plan was for a s117 funding panel to consider the case again after the applications were complete. When the social worker approached Mr Y about this, they said the applications for benefits would allow the Council to “find out the shortfall” and the amount they would need to ask the s117 panel to fund.
51. In the following weeks the Council maintained that an application for Universal Credit had to be the first step before anything else could happen. There were also discussions about what paperwork would be required to support a successful claim for Universal Credit, and about how various aspects of the claim should be phrased.
52. In late November the Council reviewed Miss X. They noted the amount Miss X was likely to obtain via Universal Credit. It said the Council would need to ask for additional s117 funding to cover the shortfall between that award and the rent and utility payments for the Placement. They noted this would need to be backdated to the beginning of May.
53. In the middle of December 2024 the Placement had still not received any payments for Miss X’s rent. It said that if it did not get a signed agreement within days, with confirmation of who would settle the arrears, Miss X would have to leave in early January.

Complaint process

54. Mr Y complained to the Council in September 2024. He complained the Council had not paid rent for Miss X’s accommodation since she turned 18 and were denying any responsibility to pay it. Mr Y’s solicitors also wrote to the Council in October and asked them to answer questions and take action to prevent the threat of evictions.
55. In late October the Council replied to Mr Y and Mr Y’s solicitor. The Council said usual practice is for the service user to use Housing Benefit or the housing element of Universal Credit to cover their rent, if they are eligible for these benefits. It said it had helped Miss X to apply for Universal Credit. The Council said the rent was more than Miss X had been awarded under the housing element of Universal Credit. The Council said it would fund the difference through s117 funding. It also said it would backdate these payments.
56. Mr Y made a follow-up complaint in November. Mr Y complained the Council had still not made the relevant back payment. Mr Y also complained there was still a lack of clarity about what Miss Y’s future obligations would be.
57. The Council replied in December. The Council said a benefits adviser would help Miss X make a back-dated claim for the relevant housing benefit, to cover this part of the outstanding rent. The Council said it could only do this after Miss X signed a tenancy agreement. The Council said it was in the process of making the back payment for the part of the rent it would fund through s117.
58. Following further correspondence, in January 2025 the Council confirmed Miss X’s service charge would also be paid from s117 funding.

Analysis

59. In its response to our enquiries the Council said it does not have a s117 aftercare plan for Miss X. The ICB also acknowledged the “lack of a clear s117 Plan”. This is fault. As detailed in paragraphs 18 and 19, the eligibility criteria for support under s117 are broad and the types of support which can be provided are varied. If something is necessary because of the person’s mental disorder and it will help prevent their readmission to hospital, it should be provided through s117. Because of this, each s117 aftercare plan should be bespoke and should be based on a comprehensive, robust assessment of the totality of the person’s needs. Such an assessment did not happen in Miss X’s case. Because of this we are left with an incomplete understanding of what professionals considered Miss X needed because of her mental health condition and to prevent her readmission to hospital.
60. It is not for the Ombudsmen to determine what care and support Miss X needs because of her mental health and to help prevent a readmission to hospital. The Council and the ICB are responsible for those decisions. However, we must still consider the impact of the failure to create a proper s117 plan in Miss X’s case. To do this we looked at the wider actions of the Council and the ICB to consider whether, on balance, if there had been a proper, clear s117 plan it would have included accommodation in it. Despite all the concerns and discussions about the high costs of the Placement, no one suggested a viable alternative. This suggests that there was a feature of the Placement which made it necessary because of Miss X’s mental disorder and which would help prevent her readmission. In response to an earlier draft, the Council told us it was the care provided within the Placement that Miss X needed, not the physical accommodation itself. However, the lack of alternatives suggests the care and the accommodation cannot be separated. On balance, it appears that, had Miss X been required to leave the Placement and live elsewhere in accommodation of her choice (and within her financial means), her needs would not have been met.
61. Also:

• Children’s Services and the ICB paid for the full cost of the Placement before May 2024. They agreed that Miss X might be able to apply for and use benefits to pay for the rent. However, as that had not happened, they paid the full cost.
• Adult Services and the ICB have agreed to pay the difference between the housing benefits Miss X has been awarded and the combined cost of the rent and service charge.

62. Further, in response to our enquiries, both the Council and the ICB have accepted that supported accommodation is part of Miss X’s s117 needs.
63. We put these views to the Council and noted our opinion that, more likely than not, accommodation at the Placement would have been included in a s117 plan if an adequate plan had been produced at the right time. We offered a thorough explanation of our view and how we had reached it. We also noted the possibility that the Council may continue to dispute our draft decision. We suggested six questions it could answer, or provide evidence around, to help provide more specific information to help our understanding of its thinking. The Council declined to respond to these questions, or comment on any of the points in our letter, other than to say that it did not accept our proposed findings and had nothing to add.
64. On balance, therefore, we remain of the view that the full cost of Miss X’s accommodation should have been met through s117, free of charge to Miss X. S117 places a joint duty on the Council and the ICB to do so.
65. The decisions: not to include Miss X’s rent and associated accommodation costs in her s117 package; and, not to pay her rent (and associated costs) from May 2024 are both fault. Because of the local arrangements, the fault here lies with the Council. It completed the costed care plan which the joint panel approved, and it was responsible for paying fees and re-charging the ICB.
66. Adult Services were entitled to raise concerns about the costs of the Placement. However, regardless of its concerns about costs, Adult Services should have funded the full cost of the Placement once it became responsible for Miss X’s care, including the rent and associated costs.
67. Any discussions about the reasonableness of the costs or about splitting costs with Children’s Services should have taken place in the background. If Adult Services felt the Placement was not proportionate and sustainable it would have needed to find an adequate alternative before it could have ended the Placement. These discussions and negotiations should not have taken precedence over the need to maintain and protect necessary care and accommodation for Miss X.
68. Further, the Council’s decision to make Miss X liable for the cost of the rent is fault. This is contrary to the legislation on s117 aftercare and contrary to our guidance about it. Namely, that where a person is eligible to receive a form of support through s117, including specialist accommodation, the local authority and the ICB have a responsibility to provide that support free of charge. They cannot charge for it. We consider this applies to any service charges/additional costs that are a compulsory condition of the tenancy. We do not consider there is anything in the legislation, guidance or case law which would justify a local authority or ICB asking a person to fund (or partly fund) a service they are entitled to receive through s117. This is regardless of whether the person has access to a private income or whether they are entitled to claim any state benefits. That is not to say that health and social care organisations cannot support and encourage s117‑eligible people to apply for and use other benefits (and pay other bills) as part of their defined recovery plan. Agencies involved in s117 aftercare have discretion to promote a person's independence in ways that are appropriate for that individual. However, this does not change or override the organisations’ responsibilities to provide s117-eligible services free of charge.
69. Because of the Council’s approach, the Placement did not get paid. This, in turn, led the Placement to demand a sizeable payment from Mr Y and threaten to evict Miss X. Later, Miss X began paying privately for the weekly utility costs at the Placement. These things would not have happened without the fault. This situation understandably caused Mr Y stress. It also caused him time and trouble in corresponding with various parties to resolve the situation fairly and satisfactorily. Further, there remains uncertainty about how part of the rent arrears will be paid which has caused continued stress. This stress and inconvenience are injustices to Mr Y. And, Miss X has been left financially worse off because she had to pay costs which should have been paid through s117.

Conclusion

70. Miss X is a vulnerable individual, entitled to s117 aftercare. The Council failed to complete an adequate s117 aftercare plan for Miss X, before or after she left hospital. This left everyone – Miss X, her family, professionals and other stakeholders – with a lack of clarity about what she needed to help prevent her readmission to hospital. On balance, we consider that, had the fault not occurred, Miss X’s accommodation would have been included in her s117 aftercare plan. All s117 services must be provided free of charge and there is no discretion to ask people to pay a contribution toward the cost. The Council did not pay significant costs for Miss X’s placement for a prolonged period. This put Miss X’s placement at risk and caused Mr Y avoidable stress and frustration, which is an injustice. It has led to Miss X paying a weekly fee which she should not have had to pay.

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Agreed actions

71. Within one month of the final decision the Council should write to Mr Y to acknowledge the fault identified in this decision. It should also apologise for the impact of these failings. The Council should follow LGSCO’s guidance on making an effective apology (at part 2.2 of its Guidance on remedies).
72. Within one month of the final decision the Council should confirm to the relevant parties that the full cost of Miss Y’s rent and associated accommodation costs will be funded through s117, and that s117 funding will be used to pay the outstanding rent and associated accommodation costs arrears. This should include the weekly base rent, fixed service charge and utility (water, electricity, internet and maintenance) costs, which are all compulsory costs under the tenancy. The Council should arrange (on its own or in partnership with the ICB) for s117 funding to reimburse Miss Y for the full amount she has paid privately to the Placement for utility costs to date. This arrangement should remain in place at least until there is a comprehensive review of Miss Y’s s117 aftercare and a new, detailed s117 aftercare plan.
73. Within two months of the final decision the Council should pay Mr Y £250 as a symbolic, tangible acknowledgement of the injustice its failings caused him.
74. Within three months of the final decision the Council should produce an action plan to address the fault this investigation found. It should seek to identify and implement specific and realistic ways of improving its processes to help avoid recurrences.
75. The Council should provide us with evidence they have complied with the above actions.

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Decision

76. We have completed our investigation of this complaint. There was fault by the Council which caused an injustice to Mr Y. We have recommended actions to remedy the injustice. We have not found fault with the ICB as it relied on the information and costs submitted to it by the Council.

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Investigator's decision on behalf of the Ombudsman