Mrs A complains Miss B should not be paying for rent and instead it should be included in her section 117 aftercare plan and therefore paid for by the Council and the ICB. Our investigation has found Miss B is not eligible for ‘accommodation plus’ and is responsible for paying her rent. However, during this investigation I found the Council has not recently formally assessed Miss B’s capacity to make decisions on where she wants to live in line with guidance, and this has prevented her purchasing her own property. I have made recommendations to help Mrs A assist Miss B.

The complaint

1. Mrs A is a court appointed deputy for Miss B for property and financial affairs. Miss B is receiving section 117 aftercare from Derby City Council (the Council) and NHS Derby and Derbyshire Integrated Care Board (the ICB).
2. Mrs A complains the cost of Miss B’s accommodation should be paid by the Council and ICB as part of her section 117 aftercare, instead she has been asked to claim housing benefit and pay a service charge.
3. Miss B was paying for her accommodation through housing benefit. However, her circumstances have changed so she will no longer be eligible for housing benefit and will have to pay her rent from her own money.
4. Mrs A wants the full amount Miss B has paid to date to be refunded, and for all charges related to her accommodation paid as part of her section 117 aftercare plan.

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The Ombudsmen’s role and powers

5. 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).
6. 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, 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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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(1), as amended)

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How I considered this complaint

9. I have considered the information Mrs A has provided. I also considered documents and comments on the complaint from the Council and the ICB. I also considered relevant law, policies and guidance.
10. Mrs A and the organisations had the opportunity to comment on my draft decision, and I considered these comments before finalising the investigation.

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What I found

Background

11. If there is a need for ongoing decision-making powers and there is no Enduring Power of Attorney or Lasting Power of Attorney, the Court of Protection may appoint a deputy to make future decisions. It will state what kinds of decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) produces detailed guidance for deputies. Mrs A is the court appointed deputy for Miss B’s property and affairs only from August 2024.
12. Miss B was detained under section3 of the Mental Health Act 1983 in 2015.
13. Section 117 of the Mental Health Act 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 (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
14. Miss B has memory issues. She does not understand the risk of substance misuse to her health and wellbeing. Her section 117 aftercare package, paid for by the Council and ICB, focuses on keeping her safe and to prevent her relapsing into substance misuse and returning to hospital.

Accommodation

15. Mrs A believes Miss B’s section 117 aftercare plan should include accommodation, and the Council and ICB should be paying for it. She complains Miss B should not have had to apply for housing benefit previously, pay for an additional service charge, or now be expected to pay for the rent of the property now her circumstances have changed.
16. Section 117 aftercare services must:
• meet a need arising from or related to the mental disorder for which the person was detained; and
• have the purpose of reducing the risk of the person’s mental condition worsening and the person returning to hospital for treatment for the mental disorder.
17. 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.
18. Mrs A believes Miss B is in ‘accommodation plus’ and therefore she should not be paying for it, and it should instead be paid for by the Council and ICB as part of her aftercare plan.
19. Miss B currently lives in a shared house with other tenants with care provided to them by on site staff. The accommodation does not allow other organisations staff to provide care; the care and accommodation come together as a package.
20. Miss B has her own bedroom and en-suite bathroom on the ground floor. The front and back doors are shared between tenants. Miss B has facilities within her room to make hot drinks and space for a microwave, but she prefers to use the communal kitchen. As Miss B has reduced mobility, she needs a ground floor residence. The Council confirmed she does not have adaptations or equipment that would mean another placement without these features would be unsuitable for her.
21. I asked the Council to explain how Miss B’s current property was found. It explained its brokerage team identified the current supported living placement as suitable to meet Miss B’s needs. The provider offered both accommodation and a care package in the same place, but other supported living placements may also have been able to meet her needs. The Council also said if Miss B wanted to move, it would consider her request.
22. I have reviewed the tenancy signed by Miss B in 2021 and it is in a standard format, and shows she is responsible for paying the rent and service charge for her room.
23. The accommodation Miss B is living would not be considered ‘accommodation plus’. It is the care she is receiving in the accommodation rather than the accommodation itself which is part of her section 117 aftercare plan, and it is the care which is preventing her from relapsing. This care could be provided elsewhere, by a different care provider. There is no fault in how the Council decided Miss B’s accommodation was not ‘accommodation plus’.

Capacity

24. During this investigation, it became clear part of the reason for Mrs A bringing the complaint to the Ombudsmen is because Miss B wants to buy a property and receive the same care package in her own home. This would remove the need for her to pay rent and the service charge.
25. The Council has said previously it would support Miss B if she wanted to move, but I cannot see her request to buy her own property, with support from her deputy, Mrs A, is being seriously considered.
26. The main barrier to this is the Council’s belief she does not have capacity to decide where she lives, and she does not understand the implications of living alone. I asked the Council and ICB when Miss B’s capacity was last assessed, and both agreed it was in 2019.
27. In response to my draft decision, the Council provided some further information. It said Miss B had a capacity assessment in May 2022 on whether she had capacity to sign her tenancy agreement. A further capacity assessment was completed in 2023 on if she could be the executor of her mothers will. In both cases she did not have capacity to make these decisions.
28. 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.
29. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?

• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

30. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments. If there is a conflict about whether a person has capacity to decide, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
31. The Council has not considered if Miss B is able to understand the risks of her buying, and moving into, a house with a care package in place. Miss B’s capacity to make the decision to buy her own home and move into it has not been assessed to date.
32. In her care and support plan review in 2025, the Council said “[Miss B wants] to purchase or rent her own flat or house and 24-hour staffing to be put in place. a COP DOLs would be required as [Miss B] lacks capacity around the support needs and does not understand the amount of support she needs. [Miss B] felt 4 hours a day would be sufficient. this would be the least restrictive option. further discussion and risk assessment would need to take place to ensure [Miss B] would accept the staffing in her own home and be safe within a home environment.”
33. Whilst Mrs A has not complained about the lack of a capacity assessment for Miss B, section 26D of the Local Government Act 1974 says we may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result.
34. The evidence shows the Council has not assessed Miss B’s capacity in relation to the decision of her wanting to move to new accommodation, which she has the finances to purchase with support, rather than paying rent. In this case, the lack of a proper capacity assessment may have prevented Miss B from achieving her goal of owning and living in her own home.
35. The Council has also said previously it would be able to provide the same level of support in an alternate accommodation, but has not explained why this could not be done if Miss B bought her own property. This is fault as the Council has not followed the correct process, namely assessing Miss B’s capacity for the specific decision.

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Action

36. I recommend within three months of this decision, the Council formally assess Miss B’s capacity around her wish to buy her own home. The Council should communicate with Mrs A around this to fully understand Miss B’s wishes before it assesses her capacity.
37. The Council should provide us with evidence it has complied with the above action.

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Decision

38. I find fault by the Council in not properly assessing Miss B’s capacity to make the decision to buy her own home and I have made recommendations for action. I find no fault with the ICB.

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Investigator's decision on behalf of the Ombudsman