Certain individuals who have been sectioned under the Mental Health Act 1983 (MHA) will be entitled to free aftercare funding, known as s117 aftercare. Our expert Community Care law solicitors answer your questions.
Section 117 (s117) of the Mental Health Act 1983 (MHA 1983) sets out that certain people who have been sectioned are entitled to aftercare in order to reduce the risk of their mental health deteriorating and therefore further hospital admissions.
It is unlawful for Social Services to charge for services that they should provide under their s117 aftercare duties. s117 aftercare funding is designed to cover the cost of meeting all of the person’s mental health related support needs. If the person has physical health needs and mental health needs, s117 may not cover the full cost of their support package. In some cases a top-up is required to fill the funding gap.
Individuals who have been detained under Section 3 of the MHA 1983 make up the majority of people eligible for s117 aftercare. However, people detained under any of the forensic treatment sections (s37, s45A, s47 or s48) or under a Community Treatment Order will also be entitled to s117 aftercare services.
Aftercare is defined as having both of the following elements:
s117 aftercare funding can cover many types of support service which are provided to help the person live in the community after discharge from psychiatric hospital. This may include healthcare, social care, employment services and services to meet the person’s wider social, cultural and spiritual needs.
s117 aftercare may cover the costs of accommodation in certain circumstances, but not the costs of ordinary housing such as a rented flat. The rules are complex and many Social Services departments are looking to find ways to limit what they pay for. If the person requires specialist accommodation because of the mental health condition that led to them being sectioned then it is reasonable to expect that s117 funding will cover the cost. This will usually be supported living or care home accommodation. S117 may also cover the cost of specialist accommodation that is imposed on the person because they lack the mental capacity to make the decision for themselves. Mental health and mental capacity are very different things, but some people who qualify for s117 aftercare duties may also lack capacity.
People who qualify for support under s117 aftercare rules should be given the same right to choice as other people when it comes to finding appropriate supported accommodation. However, if the person chooses accommodation which costs more than the Local Authority Usual Rate, they may be required to make a First Party Top Up or to find someone who will pay a Third Party Top Up. It may be possible to challenge the Top Up by arguing that the person has a need, and not a preference, for the particular accommodation which costs more than Social Services’ “cap” on costs.
s117 is designed to last for as long as the need for aftercare arises, in order to reduce the risk of deterioration and subsequent re-admission to hospital. This could be a short, medium or long term arrangement which will depend on the person’s individual circumstances.
Establishing a person’s right to s117 aftercare can be valuable in terms of meeting the costs of their ongoing care. It is not uncommon for people who should have qualified for s117 aftercare to not be given that support and be left self-funding their care unlawfully.
Establishing and retaining eligibility for s117 aftercare funding is no longer as straightforward as simply writing a letter and providing evidence of the relevant detention under section. It is possible that Health or Social Services may try and argue that the criteria for aftercare services are not met – for example, the services in question are not relevant to reducing the risk of another hospital admission. The fact that a person’s mental health needs have become stable, due to the aftercare provision, doesn’t mean they no longer require the services. The question to ask is: “if these services were withdrawn would the person’s mental health decline to the point where re-admission is likely?”.
Many Health or Social Services Departments are finding arguments and loopholes to avoid any s117 duty; to limit what they provide; or to discharge their s117 aftercare duties prematurely.