Summary: Ms F complained that Kent County Council and NHS Kent and Medway Integrated Care Board’s flawed Section 117 aftercare policy meant she would have to unfairly contribute toward accommodation costs. We consider the Council and ICB’s Multi-Agency Policy is flawed, which has caused Ms F confusion, uncertainty and distress. The Council and ICB have agreed to apologise to Ms F, make a symbolic payment to her, review the policy, and offer to reassess her Section 117 aftercare needs.

The complaint

1. Ms F complains that Kent County Council (the Council) has asked her to fund part of her Section 117 accommodation using housing benefit. She says the Council and NHS Kent and Medway Integrated Care Board’s (the ICB) policy is flawed. It says people should pay their rent, service charges and utilities even if they are in ‘specialist accommodation’ provided under Section 117.
2. Ms F says she has suffered time and trouble researching Section 117 and housing benefit. It has also caused her stress when she should be recovering and preparing to move on. A housing benefit application could make her financially vulnerable.
3. Ms F would like the Council and ICB to fully fund her supported living placement. The organisations should amend their policy and review her care plan so it reflects how they will fund accommodation under Section 117.

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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).
6. If it has, we 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.
7. 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 responsible organisation has to make. Therefore, my investigation has focused on the way the organisation made its decision. 
8. If we are satisfied with the actions or proposed actions of the organisations 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

9. I considered evidence provided by Ms F and the organisations as well as relevant law, policy and guidance, and legal advice.
10. Ms F and the organisations had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Section 117 of the Mental Health Act 1983

11. Criminal courts can make a ‘hospital order’ under Section 37 of the Mental Health Act 1983 if they think someone needs to go to hospital for treatment instead of prison.
12. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the MHA imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (sections 3, 37, 45A, 47 or 48). Aftercare services provided in relation to the person’s mental disorder under Section 117 cannot be charged for. This is known as Section 117 aftercare.
13. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team. When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.
14. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and ICBs must follow it, unless there are good reasons not to. The Code says that Section 117 aftercare can include accommodation and continues as long as the person needs these services. Accommodation can generally only be part of Section 117 aftercare if:
• the need is for enhanced specialised accommodation (“accommodation plus”);
• the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); and
• the “accommodation plus” reduces the risk of the person’s mental health condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder.
15. 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.”

The Council’s Generalised Policy

16. Section 7 of the Council’s Generalised Section 117 Policy says: “The person's Aftercare Plan should set out what type of accommodation the person requires and whether this is a need related to their mental health condition. Residential or other specialist accommodation can only be funded through Section 117 aftercare if it is in itself meeting a need related to the person's mental health condition. Where residential or other specialist accommodation is necessary as part of the person’s aftercare arrangements, the costs of this should be met by the Integrated Care Board (ICB) and local authority. If this is the case: The person should not be asked to contribute to the cost of the accommodation nor be expected to claim housing benefit…”
17. This Policy is essentially a copy of the LGSCO and PHSO’s Section 117 aftercare guidance from 2022 (paragraph 15).

The Council and ICB’s Multi-Agency Policy

18. In 2022, the Council and ICB amended Sections 4.9 and 6.2 of its ‘Section 117 After-care services Policy and Practice Guidance’ (the Multi-Agency Policy) following a previous decision from the Ombudsmen. The Council noted: “When an individual is placed in enhanced specialised accommodation (‘accommodation plus’ i.e. a care home, supported living or Shared Lives) s117 after-care services do not include the individual’s rent or utilities. When the individual is entitled to housing benefit and universal credit, they must apply for these but even where they are not eligible for these benefits they will still be required to pay for their rent and utilities [sic]”.
19. Section 4.9 of the Multi-Agency Policy says: “After-care services can include…supported accommodation. Please note: When an individual is placed in supported accommodation s117 After-care services does not include the rent or utilities”.
20. Section 6.2 says: “Types of accommodation, which can be provided as part of s117 MHA are…supported living accommodation”. It then says: “Please note: Rent, utilities and service charges where they apply will remain the responsibility of the individual although they may be eligible for housing benefit and universal credit and, if so, should be encouraged where necessary to make a claim”.

Background

21. In 2021, the courts detained Ms F under a section of the Mental Health Act.
22. In October 2021, a Hospital Trust (not subject to this investigation) discharged Ms F. At that point, she was eligible Section 117 aftercare.
23. Ms F took an overdose of medication in 2022, which led to the Hospital Trust admitting her an informal patient until present.
24. In mid-2024, the Council carried out a care needs assessment, which identified she would likely need a supported living placement on discharge from hospital. At the same time, Ms F asked the Council questions about supported living and Section 117 aftercare. The Council told her that if she moved into supported living she would need to contribute towards her rent, utilities and service charges, according to its Multi-Agency Policy. That was because supported living was not a specialised need. Ms F did not understand why supported living could not be considered as “accommodation plus”. The Council told her it would fund the care she would receive under Section 117, but not the rent, because the supported living placement would not need adaptations for her mental health.
25. In October and November 2024, Ms F raised complaints to the Council.
26. In mid-November 2024, the Council said it was sorry for the confusion caused by the contradictions in its Generalised and Multi-Agency Policy around supported living and costs. It amended the Generalised Policy as a result.
27. At the same time, the Council completed Ms F’s draft care and support plan. It highlighted she would need a supported living placement on discharge.
28. On 11 December 2024, the Council and ICB agreed to provide Section 117 aftercare funding for a supported living placement. It said: “it is clear [Ms F] is not accessing the significant consequences on her risk (overdose prior to informal admission), supported living with 25 hours 1:1 would be the least restrictive and appropriate measure, under s117, to mitigate further convictions as well as hospital admission…”
29. Four days later, Ms F complained to the Ombudsmen.

My view

30. The Council has two policies around Section 117. Those policies provided contradictory information about Section 117 and accommodation. During the complaints process, the Council recognised the disparity between the two policies. It decided the Generalised Policy did not reflect its view on Section 117 and accommodation costs.
31. So, I have considered if the Multi-Agency Policy falls in line with the MHA and Code of Practice. I am not satisfied it does, which is fault. I will explain why.
32. The Multi-Agency Policy’s starting position is, even if someone’s accommodation forms part of their Section 117 aftercare, the person would need to contribute towards its rent, utilities and service charges (using housing benefit or otherwise). I consider that is fault, and not in line with the Code. The Code and Multi-Agency Policy is clear supported living can be considered “accommodation plus”. Then if someone needs supported living for that purpose, they should not contribute toward those costs associated with the placement, including rent, utilities and service charges. Section 117 is an absolute duty, which is free.
33. The Council and ICB amended its Multi-Agency Policy in 2022 to change its position based on a previous decision by the Ombudsmen. I consider the Council and ICB fundamentally misunderstood our earlier decision. In that case, we found the local authority had decided the person’s accommodation formed part of their Section 117 aftercare. So the local authority should have funded it in full, rather than ask the person to claim housing benefit to contribute toward their accommodation costs. So, I think the Council has misunderstood the Ombudsman’s decision in 2022, which contributed to its own flawed Multi-Agency Policy.
34. For Ms F’s case, the Council has been clear it would not fund the rent, utilities or service charges of a supported living placement. Because it does not meet the criteria of “accommodation plus”. However, I have not seen any evidence the Council has completed a specific assessment of Ms F’s Section 117 needs, in line with the CPA. Also, there is no detailed analysis why the supported living placement does not meet the criteria of “accommodation plus”. The Council’s draft care plan in November 2024 does not include that detail. That was fault, and not in line with the Code.

The impact of the Council and ICB’s fault

35. Ms F has provided evidence to show how the difference between the Generalised and Multi-Agency policies has caused her confusion.
36. I consider the Council and ICB’s flawed Multi-Agency Policy has also caused her uncertainty and distress. She says that if she would need to contribute towards her accommodation costs, she may become more financially vulnerable. This has also clearly impacted the Council and ICB’s Section 117 aftercare planning, because Ms F has understandably disengaged from that process.
37. During my investigation, I met with the Council and ICB to discuss their Multi-Agency Policy and Ms F’s complaint. During our discussion the Council accepted its approach to supported living and associated costs lacked clarity and caused confusion, including its interpretation of the Ombudsmen’s decision in 2022. Also, the Council and ICB were open to consider the potential impact to others.
38. To their credit, the Council and ICB have accepted their Multi-Agency Policy lacked clarity. They have both also shown willing to reassess Ms F’s specific Section 117 aftercare needs and hope to discharge her from hospital without further delay. The Council and ICB’s willingness to progress and learn from Ms F’s complaint, should encourage Ms F to reengage with the Section 117 discharge planning process, which includes a robust assessment of her needs (in line with the Code).
39. I consider the Council and ICB should act below to remedy the injustice that she (and potentially others) have suffered.

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Action

40. Within four weeks of this decision, the Council and ICB should jointly:
• Write to Ms F to acknowledge the fault identified in this decision. They should apologise to her for the impact of their fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Ms F £500 as a symbolic acknowledgement of the confusion, uncertainty and distress stress caused to her.
• Carry out a joint review of their Multi-Agency Policy (specifically sections 4.9 and 6.2) to ensure it falls in line with the MHA and Code of Practice’s approach to Section 117 and accommodation.
41. Once the Council and ICB have completed that review of the Multi-Agency policy, within a further four weeks, they should contact Ms F to offer to arrange a comprehensive assessment of Ms F’s Section 117 aftercare needs, to support her discharge from her current hospital admission. If they decide Ms F will need accommodation on discharge from hospital, it should include a detailed analysis explaining if that placement meets the criteria for “accommodation plus”.
42. During my investigation, the Council and ICB told me “There are approximately 250 people who have been identified that might be paying rent in the context of supported living, who receive Section 117 after-care”. Based on the Council and ICB’s flawed Multi-Agency Policy, some of those people may be unnecessarily paying towards their accommodation. Therefore, as part of individual service users’ Section 117 annual review process, the Council and ICB should review if those people’s supported living placement forms part of their Section 117 aftercare.
43. The organisations should provide us with evidence they have complied with the above actions.

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Decision

44. I find fault causing injustice. The organisations have agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman