Summary: Mrs K complained the Council and the Integrated Care Board (ICB) stopped paying for Miss D’s housing costs when the property changed to supported housing. She said this resulted in
Miss D depleting her savings because she had to pay rent and incurring legal charges as she had to seek specialist legal advice. We found fault in the way the Council and the ICB decided to stop paying for Miss D’s housing costs as her accommodation should have been provided without charge in line with the terms of the Mental Health Act 1983. The legal fees she owes could have been avoided were it not for the faults. The Council and the ICB have agreed to our recommendations and will repay Miss D over £59,000 she paid for rent plus interest and pay her avoidable legal fees. They will also improve their processes and determine if others have been affected in a similar way.

The complaint

1. The complainant, who I shall refer to as Mrs K, is the professional representative of the person affected, Miss D. Mrs K complains Cheshire East Council (the Council) and NHS Cheshire and Merseyside Integrated Care Board (the ICB) stopped paying for Miss D’s accommodation when they separated housing costs from her aftercare package in 2019, after the property she lived in was deregistered by the landlord and care provider.
2. Mrs K says the Council and the ICB were wrong to have told Miss D to make a claim for housing benefit as her accommodation should always have been provided without charge in line with the terms of section 117 of the Mental Health Act 1983. The complainant says the Council and the ICB failed to follow the guidance set out in the Mental Health Act Code of Practice. She says Miss D depleted her savings due to the high charge for rent she had to pay because she was not eligible for housing benefit. She could also not afford to pay the professional fees associated with pursuing this complaint.
3. To put things right Mrs K wants the Council and the ICB to repay Miss D the full amount she has paid for rent and service charges as well as paying the professional fees which are owed.

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The Ombudsmen’s role and powers

4. 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).
5. 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). 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.
6. When investigating complaints, if there is a conflict of evidence, we may 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. 
7. 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

8. I have considered information provided by Mrs K by telephone and in writing.
9. I have considered information provided by the organisations complained about in response to my enquiries.
10. I have considered the law and guidance relevant to this complaint.
11. All parties had an opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Legal and administrative considerations

12. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
13. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
14. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47 and 48 of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
15. 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”.
16. The Council and the ICB have had a joint section 117 policy in place since November 2017. Section 7 of the policy refers to the ‘Provision of Accommodation’. This says in paragraphs 7.1 to 7.4 of the policy (17 to 21 of this decision statement):
17. “In rare and unique occasions, it can be assessed that a person’s needs for accommodation falls under the duty of s.117.
18. In determining whether such accommodation is a service under s.117, health and social care practitioners should consider whether the accommodation provides for the dual purpose of:
• meeting a need arising from, or related to, the person’s mental disorder.

and

• reducing the risk of a deterioration of the person’s mental condition (and accordingly, reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder).
2. When looking at whether a service is an ‘after-care’ service to be provided under s.117, the person’s needs should be clearly identified and then considered to determine if the service:
1. meets needs that do not arise from, or relate to, mental disorders.
2. only meets needs that arise from, or relate to, the mental disorder but does not aim to reduce the risk of deterioration of the person’s mental state and accordingly reduce the risk of hospital readmission for treatment of mental disorder.
3. meets needs that arise from, or relate, to mental disorders and aims to reduce the risk of deterioration of the person’s mental condition and accordingly reduce the risk of hospital readmission for treatment of mental disorders.
3. If the accommodation that is being considered falls within (iii) then there is a duty to offer it under s.117. In that case, they would be ineligible to claim housing benefit and the costs should be picked up under the ICB/Local Authority funding arrangements/agreement.
4. If it falls within i) or ii) it is outside the scope of s.117 and the person is liable to pay rent and can be eligible, depending on an assessment of their financial resources, to support from Housing Benefit. Housing Benefit Teams will need clear direction and transparent communication from health and social care staff about whether each person in supported living is eligible for housing benefit based upon which of these conditions apply.
5. Housing Benefit is a means-tested benefit for people living in rented accommodation. A person can only get housing benefit if certain conditions are met. People living in supported accommodation that includes care can apply for housing benefit.
6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
7. The Court of Protection is a specialist court to deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves. A Deputy is a person the Court of Protection appoints to manage a person’s property and financial matters if a person who lacks capacity to make decisions about property and financial matters has no one else suitable available to do so. A Deputy usually makes decisions about finances and property. The court can appoint a Deputy to take healthcare and personal care decisions, though this is rare.
8. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.

Background

26. Miss D was detained under section 3 of the Mental Health Act 1983 (MHA) around 1990. The start date of her section 117 aftercare entitlement is recorded as November 2010, but the Council acknowledges her entitlement could have started around 1990 when a predecessor council was responsible for her aftercare needs.
27. Miss D has a learning disability and has been diagnosed with anxiety, depression, post-traumatic stress disorder, psychosis and personality disorder. She is under the care of the local Community Mental Health Team. Mrs K is Miss D’s Deputy for property and financial affairs because she is unable to manage her financial affairs.
28. Miss D has lived in various residential care and supported living placements since 1990. Her care and support and accommodation needs have been met under the terms of section 117 of the MHA since the Council became responsible in 2010.
29. Before 2019 Miss D lived in a residential care home which was registered with the Care Quality Commission managed by a housing consortium, Provider X, that acts as the landlord and provides care and support.
30. In 2019, Provider X decided to change the status of Miss D’s home from a residential care home to supported living accommodation. Provider X also did the same at other properties it managed and provided care and support.
31. When this happened, the Council stopped paying for Miss D’s accommodation costs and told her and the other residents affected by the change they needed to make a claim for housing benefit.
32. Mrs K then made a claim for housing benefit on behalf of Miss D. Once the claim was assessed the Housing Benefit team told Mrs K that Miss D was not entitled to housing benefit because her savings took her over the eligibility threshold. Because of this Miss D then had to pay the costs for her accommodation from her savings. When her savings depleted below the eligibility threshold she then became eligible for housing benefit in April 2022.
33. Later in 2022 Mrs K became aware Miss D’s accommodation should have been paid for under the terms of section 117 of the MHA. She contacted the Council to raise the issue and communicated with its legal team in writing. She then made a formal complaint.
34. Mrs K’s complaint said Miss D’s housing costs should not have been separated from her care package which was being provided under section 117. She said Miss D did not live in ordinary housing, she lived in supported living accommodation which formed part of her aftercare. She asked the Council to repay money Miss D had paid for rent. Mrs K asked the Council to provide evidence of a change in Miss D’s section 117 aftercare needs to support why it had stopped the service.
35. In response, the Council said it did have a responsibility to provide Miss D with section 117 aftercare services. It said it decided the provision of accommodation could be separated from the provision of care (when Provider X changed the statues of the property). It continued to pay for the care and support Miss D received under the terms of section 117. Later, the ICB also began to fund 50% of the care costs (not including accommodation).
36. Following lengthy discussions between the Council and Mrs K, they both sought further legal advice on the matter. The Council also did so on behalf of the ICB. Mrs K made a subject access request on behalf of Miss D following advice from her legal advisor. She was then able to review Miss D’s social care and medical records.
37. Mrs K wrote to the Council and the ICB following her review of the records.
    She set out her view that Miss D met the criteria found in case law. In this judgement the judge held the view that section 117 is very narrow in the respect of accommodation unless a specific test was applied. In summary Mrs K said:
• All of Miss D’s accommodation needs had been met under section 117 since her discharge from section 3 up until the placement was deregistered in April 2019.
• Miss D’s accommodation has been under the same care team since deregistration and her care needs have not changed as shown in care plans she had reviewed.
• The cost of her rent exceeded the cost of ordinary accommodation by around £300 monthly. Provider X had said this was because the accommodation was staffed 24 hours daily.
• Miss D did not arrange her placements and had relied on the Council and the CMHT to place her.
38. The Council and the ICB sent a final response to Mrs K in December 2023 following consideration of legal advice taken. In coming to a view, the Council and the ICB also considered the criteria set out in the case law Mrs K had referred to. The Council and the ICB agreed Miss D’s need for accommodation is a direct need resulting from her detention under the MHA. They did not agree she lived in specialised accommodation or that she was being placed in accommodation involuntarily due to a lack of capacity arising from her mental condition.

Findings

39. Case law confirms accommodation is a common need for all people. Therefore, for accommodation to be an aftercare need, the person must have a need for ‘accommodation plus’. This means the person needs enhanced specialised accommodation to meet needs arising from or related to their mental disorder. The need must be as a direct result of the reason the patient was detained. The accommodation must reduce the risk of a deterioration in the patient’s mental health that may result in potential readmission to hospital for treatment.
40. There is no dispute regarding Miss D’s entitlement to section 117 aftercare services. The Council and the ICB agree and accept Miss D’s accommodation need is a direct result of the reason she was detained under the terms of the Mental Health Act 1983.
41. The dispute between Mrs K, the Council and the ICB is about whether
    Miss D’s accommodation meets the definition of enhanced specialised accommodation. Because of the change in status of Miss D’s property, the Council and the ICB feel Miss D’s property is ordinary housing rather than enhanced specialised accommodation.
42. In response to our enquiries the Council and the ICB confirmed Miss D’s
    section 117 aftercare services included accommodation prior to the change in status of her property in 2019. They said it was this change which prompted them to stop paying for Miss D’s housing costs and telling her to claim housing benefit. They said once a property becomes supported living, responsibility for paying rent, food and utility bills becomes the responsibility of the tenant in line with other supported living properties. Although this may be correct for some individuals, I do not find this to be the case for Miss D. I find fault with the Council and the ICB’s view. It may be that other residents have been affected because of their view and decisions.
43. Section 117 of the MHA does not stipulate aftercare cannot be provided for supported living accommodation. The MHA Code of Practice says health and social care authorities should interpret the definition of aftercare broadly and aftercare can include supported accommodation. In coming to their view there is not enough evidence to show how the Council and the ICB considered the code of practice and I find this to be fault.
44. Miss D’s entitlement to section 117 accommodation to meet her needs arising from her mental disorder did not change when Provider X deregistered the property where she lived. There is no evidence to show the Council and the ICB followed a formal process in line with the MHA and the associated code of practice to either discharge her from services or to alter her section 117 aftercare plan following a proper review. This is fault.
45. I have considered Miss D’s care plans and review documents provided by the Council and the ICB in the response to my enquiries. The documents do not evidence her mental health has improved to the point she no longer requires section 117 aftercare services which has always included accommodation since the date the Council placed her in accommodation. The documents show Miss D has a need for accommodation because of her mental health disorder and to prevent deterioration and readmission to hospital.
46. For example, information in the documents state:
• Miss D would be at risk of her safety and wellbeing being compromised within and outside of her home if staff were not available 24 hours a day to monitor and support her.
• Miss D often feels at risk, and she relies upon the support she receives within her supported accommodation to keep her safe and to help her feel safe.
• The assessment concluded the risk is well managed in Miss D’s current housing situation.
47. The Council and the ICB said they believe Miss D does not lack capacity to make decisions about her accommodation and care and support arrangements. They referred to a visit completed on 4 March 2023 and the view from the officer that Miss D did not lack capacity. However, a copy of the assessment completed on the same date (and previous assessments) states, “[Miss D] has been assessed as lacking capacity in relation to being accommodated at [her current home]”. This creates confusion and the Council and the ICB should have formally assessed Miss D’s capacity to make this specific decision. I have not seen evidence to show they did this and this is fault. As a result, I cannot say, on balance, whether Miss D has the capacity to make an informed decision to stay at the property.
48. The evidence suggests it is more likely than not Miss D did not have a choice about her placement in 2010. A DoLS was in place and care records state she lacked capacity to make the decision about her placement. Therefore, it is likely, on balance, Miss D was placed (from 2010) in the accommodation on an involuntary basis because of her original condition.
49. Annex B of the Council’s and the ICB’s joint policy says, “During a review of
    s.117, when considering whether an ‘after-care’ service provided under s.117 continues to be required, the person’s ongoing needs must be clearly identified, and the review must address:
1. Are the services meeting needs that arising from/relate to the mental disorder? and
2. Are the services needed to reduce the risk of deterioration of the person’s mental condition and accordingly reduce the risk of hospital readmission for treatment of mental disorder?
50. If the review concludes that the service now only meets needs that arise from/relate to the mental disorder but are no longer required to reduce the risk of deterioration in the person’s mental condition and accordingly reduce the risk of hospital admission for treatment of mental disorder, then the person can be discharged from s.117.
51. If the review concludes that there is now no need arising from or related to a mental disorder, then it will follow that there is also no risk to the person of experiencing a deterioration in their mental condition and accordingly of being admitted to hospital.
52. Only if both 1 and 2 continue to be present would a person continue to be in need of s.117 after care services.
53. s.117 aftercare cannot be terminated solely:
• Because the person refuses the services.
• Claiming he or she has been discharged from the care of a consultant.
• Claiming an arbitrary period has elapsed.
• Claiming the care need is being successfully met in that he or she is now settled in the community.
54. Consideration of discharge from s.117 should be made at a review between the relevant professionals, the person, Carer, nearest relative and service providers where possible, following a re-assessment of the person’s needs. Prior to ending s.117 it should be demonstrated that there has been active engagement with the person /nearest relative/their representatives. This must be clearly documented at review.
55. The Council and the ICB completed a review of Miss D’s needs in May 2023. A social worker from the Council and a specialist nurse assessor from the ICB attended the review. Miss D and a representative from Provider X were also present. The notes within the review document confirm the review took place following a query over the funding of the “rent element”. The document also states the review was to assess whether Miss D was happy with the support she was receiving and to ensure the placement was meeting her needs.
56. The review document states the care appeared to be meeting Miss D’s needs and was helping her to achieve her outcomes, optimising her wellbeing. Miss D confirmed she did not want to move. The assessor recorded “changes to funding – to include ‘rent element’ as queried by [Miss D’s Deputy]. … To joint fund the ‘rent’ element of [Miss D’s] package of care in line with S117.”
57. The review document also states:
• Miss D was supported by an in-house staff team to order, collect and take medication. It specifically noted there was a 24-hour daily staff presence.
• Miss D required staff on site due to the complex nature of her needs and fluctuating pain, mobility and mood. She was only safe when someone was always present within the home.
• The primary reason for the support was because of her mental health needs.
58. The evidence confirms the Council’s and the ICB’s officers, who were experienced health and social care practitioners, concluded Miss D’s accommodation should be funded in line with section 117 of the MHA. There is not enough evidence to show the Council and the ICB acted on the outcome of this review which their officers completed in response to the dispute. The Council and the ICB are at fault.
59. The Council and the ICB should not have stopped funding Miss D’s accommodation as this formed part of her aftercare services and they have not discharged her from section 117 aftercare. The Council and the ICB are at fault in the way they decided to stop funding Miss D’s accommodation costs.
60. When accommodation is part of a person’s section 117 aftercare, it must be free to the person. The Council and the ICB should not advise people to claim housing benefit to pay for accommodation which is part of their section 117 aftercare. Housing benefit is means tested and Miss D would have needed to be financially assessed to qualify. She did not meet the eligibility criteria and had to pay for her accommodation from her savings. This was wrong and as a result Miss D experienced substantial injustice due to depletion of her savings which amounts to over £59,000.
61. The Council and the ICB should have focussed on following the review process and guidance set out in their joint section 117 policy and paid attention to the review completed in May 2023. Instead, they spent time and extra resources disputing the definition of enhanced specialised accommodation and coming to a view that Miss D lived in ordinary housing. This is fault.
62. The Council and the ICB said the property is not adapted. An adapted property is not usually necessary for people who need accommodation because of their mental health disorder in the same way it is for people who need accommodation because of their physical disability. It is unlikely, on balance, that ordinary housing would have the features associated with Miss D’s property such as 24-hour staff presence which includes waking night staff and a room dedicated for the sole use of staff employed by Provider X. The code of practice refers to supported accommodation as meeting the definition of section 117 aftercare services. The Council and the ICB failed to consider this when making their decision.
63. Mrs K also pointed out the rent is much higher when compared with ordinary housing in the same area and this is likely because of the features of the property. In an email to Mrs K dated January 2023, Provider X confirmed the “supported living accommodation which is staffed 24 hours per day… is not comparable to a private house share.” I have not seen evidence to show how the Council and the ICB properly considered this information when deciding Miss D’s property was not enhanced specialist accommodation. This is fault.
64. The duties imposed on the Council and the ICB to provide free aftercare services under the terms of the Mental Health Act 1983 is different to other legislation. Aftercare services continue as long as there is a need to be met. Aftercare services cannot be withdrawn without reassessing a persons needs and until the Council and the ICB are satisfied the person no longer has needs that require section 117 aftercare services. Aftercare services cannot be withdrawn simply because the status of a person’s accommodation changes from registered residential care accommodation to supported housing accommodation.
65. As a result of disputing this matter through their legal teams the Council and the ICB lost sight of their duty of care owed to Miss D, who is a vulnerable adult and who has always been entitled to section 117 aftercare accommodation. This resulted in the authorities spending extra time, money and resources which could have been saved were it not for the faults.
66. Because of the faults I have identified Mrs K had to undertake extra work to deal with the matters specifically relating to the section 117 accommodation dispute and housing benefit claim. She also had to seek specialist legal advice as the Council and the ICB referred the matter to their legal advisors. As a result, Miss D incurred extra charges associated with Deputy fees and legal fees. Were it not for the faults by the Council and the ICB, she would not have incurred these avoidable costs.

Others affected by the Council’s and the ICB’s faults

67. In response to our enquiries the Council and the ICB confirmed there were three homes which were deregistered in February 2019 which affected 21 former residents. A number of these residents previously had funding in place for their accommodation in line with section 117. This means that other residents may have been affected in a similar way to Miss D. The Council and the ICB should consider this further.

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Recommendations

68. The Council and the ICB have agreed to our recommendations and within two months of our final decision they will take the following action to remedy the injustice caused by the faults:
• Agree a lead agency and arrange for £59,149.86 to be repaid to Miss D via her Deputy Mrs K which totals the amount she paid for rent between
  February 2019 to April 2024. They should also apologise in writing for the impact the faults had on Miss D’s finances and the time Mrs K spent pursing this complaint.
• Calculate the interest owed to Miss D based on the sum of £59,149.86 in line with the average retail price index starting from February 2019 when Miss D started paying rent to the date when the Council and the ICB repay the sum owed to Miss D following our final decision.
• Liaise with Mrs K and arrange to pay the avoidable expenses Miss D incurred which totals £9,143.
• Review Miss D’s care and support arrangements fully involving Miss D and an independent advocate if necessary and ensure the costs for her accommodation such as rent and service charges are included as part of her section 117 aftercare services rather than funded via housing benefit. This should continue until the Council and the ICB are satisfied she is well enough and can be discharged from section 117 aftercare. Any discharge meeting should be carried out in line with the MHA 1983 and the code of practice.
• Write to Mrs K to confirm the outcome of their review so she can manage
  Miss D’s financial affairs in line with her Deputy responsibilities.
69. Within six months of our final decision the Council and the ICB will:
• complete a review and determine whether any other residents of the 21 identified remained entitled to section 117 aftercare accommodation but were told to claim housing benefit. They will decide whether these residents have been caused injustice and are out of pocket due to having to pay rent, council tax and service charges. They will refund them accordingly providing a written explanation and apology as necessary with information of how to complain if they want to. They should ensure these residents are funded under the terms of section 117 of the MHA 1983 until the authorities are satisfied the person is well enough and can be discharged from section 117 aftercare. Any discharge meeting should be carried out in line with the MHA 1983 and the MHA code of practice.
• confirm the outcome of their review of other residents to the Ombudsmen once they have determined if others were affected in a similar way. They will confirm any action taken or planned to put things right.
• ensure all staff whose responsibilities may include administering, commissioning, assessing for or providing section 117 aftercare have knowledge of the relevant law, guidance and policy, as appropriate to their roles. They will provide training as necessary.
• remind all their staff involved in this case that the duty to pay for accommodation which is part of section 117 aftercare services is imposed on the Council and the ICB until such time they are satisfied a person can be discharged from section 117 and not simply because the status of a property may change to supported living accommodation. They will remind their staff that those entitled to section 117 aftercare accommodation should not be told to claim housing benefit as set out in their joint policy.
70. The Council and the ICB should provide us with evidence they have complied with the above actions following our final decision.

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Final decision

71. I have found fault causing injustice and I uphold the complaint Mrs K made on behalf of Miss D. The Council and the ICB have agreed to our recommendations. This is a suitable remedy for this complaint. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman