Aftercare under section 117 of the Mental Health Act

Introduction

This briefing note explains the law and practice relating to aftercare services provided under section 117 of the Mental Health Act 1983 ("the Act").

The briefing note covers the following:
(1) Who is entitled to aftercare
(2) What is meant by aftercare
(3) Who is responsible for providing aftercare
(4) When aftercare ends
(5) Charging for aftercare
(6) Remedies for failing to provide aftercare
(7) Recovering money paid by mistake
(8) Supported accommodation
(9) Useful addresses
(10) Sources of further advice

1. Who is entitled to aftercare

Everyone with mental health needs is entitled to a community care assessment to establish what services they might need. However, section 117 goes much further than this and imposes a duty on health and social services to provide aftercare services to certain patients who have been detained under the Act.

Section 117 states that aftercare services must be provided to patients who have been detained in hospital:

• for treatment under section 3
• under a hospital order pursuant to section 37 (with or without a restriction order)
• following transfer from prison under section 47 or 48.

This also includes patients on authorised leave from hospital and patients who were previously detained under Section 3 but who stayed in hospital after discharge from section or who are now under a different section, for example guardianship.

However, section 117 does not apply to:

• patients detained in hospital for assessment under section 2
• patients detained in an emergency under section 4
• patients detained while already in hospital under section 5(2)
• patients who were not detained under any section (informal or voluntary patients)
• patients under guardianship or discharged from guardianship.

Aftercare and the Care Programme Approach
Aftercare is separate from the care programme approach or CPA. Not all patients will receive care under a CPA but may still be entitled to aftercare. Aftercare should be planned with the patient, their family and carers, as well as professionals, looking at both health and social care needs. The type of aftercare required will depend on the circumstances of the individual and health. Social services are entitled to take their resources into account when assessing needs. The care plan should be reviewed at regular intervals.

Services provided to a person before admission to hospital, and which meet needs identified under section 117, will become part of the aftercare package. Therefore, if someone was paying for their residential care before they were detained in hospital under section 3, this will become part of their aftercare following discharge and responsibility for payment will pass to the Primary Care Trust, Health Authority or local social services authority. If medication was being paid for before detention then that should also be provided free of charge.

2. What is meant by "aftercare"

Aftercare services are not defined in the legislation. Section 117 therefore gives a considerable discretion to health and local authorities as to the nature of the services that can be provided. However, in addition to outpatient treatment, aftercare would include support from a community psychiatric nurse, counselling or therapy, social work, support with employment, accommodation or family relationships, assistance with benefits or managing money, the provision of domiciliary services and the use of day centre and residential facilities.

3. Who is responsible for providing aftercare

The responsibility for providing aftercare services rests with the patient’s Primary Care Trust or Health Authority and the local social services authority. Services provided under section 117 are "community care" services for the purposes of the National Health Service and Community Care Act 1990. A person who falls within the scope of this section may be in need of community care services and therefore must be assessed by the local authority, which then has a duty to provide those services which are identified as meeting the need.

There is no duty to provide particular services and the nature and extent to which these services are provided is, to a large extent, a matter of discretion for the individual authorities. However, if a detained patient has been granted a conditional discharge, the Court of Appeal has ruled that the local authority must take reasonable steps to fulfil the conditions concerned.

In order to fulfil their obligations, the Health Authority or Primary Care Trust and the local social services authority must take reasonable steps to identify appropriate aftercare facilities for the patient before his or her discharge from hospital.

4. When does aftercare end?

The duty to provide aftercare services under section 117 ends when the Primary Care Trust or Health Authority and local social services authority are satisfied that the person concerned is no longer in need of such services. The authorities can only be satisfied that the person concerned is no longer in need of aftercare services if they have monitored that person’s progress in the community since discharge.

The duty to provide services continues until both authorities have come to a decision that the person no longer requires any services. Therefore, if any part of the care plan is continuing, such as regular outpatient appointments, it is not possible to say that the person no longer has aftercare needs. However, only those needs that are identified as part of the care plan will be provided free of charge.

A person should not be discharged from aftercare solely because he or she has been discharged from the care of a consultant psychiatrist, or where an arbitrary period of time has elapsed, even if the person is well settled in the community. The authorities cannot be satisfied that a person is no longer in need of aftercare services if that person is receiving aftercare under supervision under section 25A of the Act.

Aftercare cannot be ended retrospectively. Aftercare can only be ended at the time the decision to end it is taken.

There is no obligation to take up aftercare services, unless aftercare is provided under supervision (section 25A) in which case there is a power to “take and convey” people to specified places in order to receive care.

5. Charging for aftercare

Aftercare under section 117 must be provided free of charge.

In 2002, the House of Lords held that this section imposes a freestanding duty to provide aftercare services and not simply a gateway to other community care services. As there is no express power to charge for services provided under it, such services must be provided free of charge.

All aftercare services must therefore be funded by the relevant Health Authority, Primary Care Trust or local social services authority. If someone chooses to make private arrangements for care, either in addition to or instead of, aftercare that should have been provided, it may be possible to claim repayment for this on the basis that the authority had failed to discharge their duties under section 117. However, the authority or the court would be entitled to consider the reasonableness of the private arrangements and the level of reimbursement appropriate.

6. Remedies for a failure to provide aftercare

Although there is a positive duty to provide aftercare services under section 117, there is a discretion as to the level of provision. A person who is aggrieved by a failure by the Primary Care Trust, Health Authority or local authority to meet their obligations has the following options:

Complaint to the Health Authority or Primary Care Trust
If the services to be provided are primarily health related, the complaint should be referred to the complaints officer of the Primary Care Trust or Health Authority. Complaints must be made within six months of the date of the event giving rise to the complaint or within six months of the patient becoming aware that there is something to complain about, in which case the complaint must be made within 12 months of the event. If the complaint is not satisfactorily resolved, a request can be made to have it considered by an independent panel. However, the decision to convene such a panel is a matter of discretion.

An application to the Health Service Commissioner (Health Service Ombudsman) can be made against the decision of the authority. However, this must be made within 12 months of the date of the relevant events unless there are special reasons for the delay.

Complaint to the Local Authority
If the complaint concerns services to be provided by the local social services authority, it should be directed to the complaints officer of the authority. If the matter cannot be resolved informally, the authority must notify the person in writing and invite a written complaint. The authority must consider the written representations made and respond within 28 days. If this is not possible they must explain why and must, in any case, reply within three months.

If the complainant is not happy with the way the complaint is dealt with, he or she has the right to ask for the matter to be referred to a complaints panel for review. At least one member of the panel must be independent. The panel must meet within 28 days and give its decision with reasons within 24 hours of its meeting. The authority must consider what action it proposes to take on the panel’s recommendations within 28 days. Although the panel only makes recommendations, the local authority must give substantial weight to its decision and can only reject its recommendations if they have good reasons for doing so.

The Local Government Ombudsman
A person who has a complaint about maladministration or injustice by a local authority can also complain to the Commissioner for Local Administration (the Local Government Ombudsman). Maladministration includes delay, incompetence, poor advice, failure to follow proper procedures or implement policies and bias.

The Ombudsman will usually not intervene unless the matter has already been taken up with the Chief Executive or Monitoring Officer of the authority and often requires the complaints procedure to be exhausted first. However, the Ombudsman’s powers are limited to writing a report about the matter and recommending action, which can include a recommendation that compensation be paid. If the authority fails to comply, the Ombudsman can require it to publish certain information in local newspapers.

Complaint to the Secretary of State
Where the Minister is satisfied that a local authority has failed "without reasonable excuse" to comply with any of its duties, he may make an order declaring the authority to be in default and can give directions for the purpose of ensuring that the duty is complied with. The direction can be enforced in the High Court by way of judicial review.

Legal proceedings (Judicial Review)
Decisions taken or failures to take decisions by hospital authorities or social services authorities can in some circumstances be challenged by court proceedings known as "judicial review". In judicial review proceedings, the court does not decide whether the actual decision is correct but looks at whether the decision was made properly, taking into account all relevant circumstances.

The court can quash (or annul) a decision by an authority, order an authority (with or without directions) to make a decision or comply with a legal obligation, make a statement about the law (a declaration) or stop an authority from acting in a certain way (an injunction).

Decisions made by hospital authorities or social services authorities can be challenged for a number of reasons. These include where there has been:

• a failure to take into account relevant factors
• a failure to disregard irrelevant factors
• a failure to correctly apply the law
• a decision which is perverse or made in bad faith
• a blanket policy which has been wrongly adopted
• a decision made in breach of the rules of natural justice.

Strict time limits apply to cases of judicial review and proceedings must normally be taken within three months of the date of the decision which is to be challenged.

Legal proceedings (negligence)
A full explanation of the law of negligence is beyond the scope of this briefing note. However, if a hospital or local authority fails to take reasonable care when making a decision about aftercare services, or unreasonably fails to provide appropriate services, a person could potentially have a claim for negligence if he or she has suffered damage or injury as a result. Claims for personal injury must normally be brought within three years from the date of the alleged breach of duty.

7. Recovering money paid by mistake

If someone has been charged for section 117 aftercare services, the Ombudsman has confirmed that the local authority has a duty to refund them. In the first instance, the person concerned should write to the relevant authority, asking for full reimbursement, giving details of what money has been paid, and for how long payments have been made. Authorities should pay interest on this amount. Local authorities should take the initiative in identifying people who have been charged wrongly for aftercare. If money due is not repaid reasonably promptly, then a complaint can be made to the Local Government Ombudsman. Alternatively, legal proceedings could be brought for restitution of money paid under a mistake of law or pursuant to an unlawful demand. Special limitation periods apply to when proceedings can be brought and the law in this area is quite complicated, so it is important to seek legal advice before taking any action. Claimants should be aware that if they are successful in a claim for restitution this may affect their position with regard to benefits.

8. Supported accommodation

The provision of supported accommodation and the way it is funded is undergoing changes. As a result, many supported living and care home providers are offering tenancies rather than traditional placements. "Tenants" will normally be asked to sign a tenancy agreement, which makes them liable to pay rent. For many people the rent will be paid by housing benefit and so they may not really notice that they are paying for their accommodation.

However, housing benefit is means tested and so a significant number of people will not be eligible to have their rent paid in this way. If the accommodation is provided as part of the aftercare package (as it usually would be in a group or care home) it should be provided free of charge.

It is Mind’s view that people should not be asked to sign agreements that make them personally liable for rent, whether or not it will be met by housing benefit, while they are entitled to free accommodation under section 117.

The law in this area is still unsettled and people who are asked to sign tenancy agreements in this situation should seek legal advice.

9. Useful addresses

Local authorities
All local authorities have their own complaints procedures. Complaints should be addressed to the complaints officer at the relevant authority.

Local Government Ombudsman for England
The Local Government Ombudsman for England operates from three different offices. Enquiries should be addressed to:

Local Government Ombudsman
Millbank Tower
Millbank
London SW1P 4QP

t: 020 7217 4620
f: 020 7217 4621
e: enquiries.london@lgo.org.uk
w: www.lgo.org.uk

Local Government Ombudsman for Wales
The address for the Local Government Ombudsman for Wales is:

1 Ffordd Yr Hen Gae
Pencoed
CF35 5LJ

t: 01656 641150
w: www.ombudsman-wales.org.uk

Scottish Public Services Ombudsman
The telephone number for the Scottish Public Services Ombudsman is 0131 225 5300

Health Service Ombudsman for England
Enquiries relating to health complaints in England should be addressed to:

Health Service Ombudsman
11th Floor
Millbank Tower
Millbank
London SW1P 4QP

t: 020 7276 2035

Health Service Ombudsman for Wales
Enquiries relating to health complaints in Wales should be addressed to:

Health Service Ombudsman
5th Floor
Capital Tower
Greyfriars Road
Cardiff CF1 3AG

t: 02920 39 46 21

10. Further information

This is a brief outline of the law and is not a substitute for detailed advice and relates only to the law of England and Wales in force at the date of writing.

For further information about the work of Mind's legal unit, please refer to our information sheet, "Introduction to the Legal Unit".  This is available in hard copy (telephone 020 8519 2122) or on our website at http://www.mind.org.uk/Information/Legal/

For more detailed advice on any of the issues discussed in this briefing, you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist legal advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, telephone 0845 345 4345).

Alternatively, you could contact your local Law Centre or Citizen’s Advice Bureau, who may be able to help.
 
Michael Konstam
Mind Legal Unit 

April 2004