Aftercare accommodation and "original condition"

Law and practice Mental Health Act
1

In Surrey County Council (LGSCO 25 016 444, 13 May 2026) the LGSCO said in passing that:

Accommodation can generally only be part of section 117 aftercare if: … the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); …

The “original condition” thing comes from R (Afework) v London Borough of Camden [2013] EWHC 1637 (Admin) but wasn’t incorporated into the subsequent statutory definition in s117(6). That statutory definition seems to refer to the current “mental disorder” and “mental condition” rather than the original one, so I assumed had essentially overruled that part of Afework. Any views on that? There is some further information at The definition of aftercare - Mental Health Law Online.

3

Not particularly concerned by the LGSCO. The LGSCO just set out an explanation on when accommodation comes under Section 117 aftercare. When you look at the Afework case, there was a clear difference between the ‘original condition’ which led to the Section 3, and the subsequent assault, which the claimant wanted to be brought under 117. The ‘original condition’ was concerned with a mental disorder, the assault was not.

The LA in the LGSCO case had not considered if accommodation was a requirement for delivering aftercare, if it wasn’t, why was a placement arranged? Who arranged it, who put the aftercare plan together? If it was a private arrangement, then likely not 117.

Unfortunately in Wales specialist placements are used to deliver after care and there is a housing benefit component to it. It’s the operational model for some providers, they provide the domicillary care, and there is a landlord who provides the accommodation. I refuse to use them, the reason being they are clearly accommodation plus, and therefore there should be no charge. Residents will often have to pay a top up, as housing benefit does not cover all the costs. If they lose their qualifying benefit, they are then liable for all of the accommodation.

4

Just noticed that Jones (28th edition, para 1-1223) agrees that the Afework “original condition” proviso applies to the new statutory definition.

… This finding is consistent with the definition unless it could be argued that the circumstances that give gave rise to the brain injury were directly related to the person’s mental disorder.

5

Thanks for the update.

6

In the preamble to the above it states

It is submitted that there must be a clear connection (not necessarily a casual [sic] connection) between the person’s need and mental disorder for the need is to come within the definition.

I am not sure that necessarily means the “original condition” definition is still good law.

Section 117(6) refers to services which a) meet a need arising from or related to “the person’s mental disorder” and b) which have the purpose of reducing the risk of deterioration in “the person’s mental condition” and, accordingly, reducing the risk of admission to hospital again for treatment for mental disorder. It does not say that the disorder must be the same disorder which led to the qualifying detention.

For example, somebody originally detained because of schizophrenia could later develop serious dementia. If, without appropriate accommodation or support, the dementia is likely to deteriorate to the point that the person requires admission for treatment, the s117(6) statutory definition would be satisfied. The need arises from a mental disorder and the service is intended to reduce deterioration and the risk of readmission (f only for different reasons).

It would not be enough that dementia is a condition which can, in general, lead to admission. There would need to be an evidential/causal connection between that person’s dementia, the service required and the risk of deterioration and admission. However, once that connection exists, excluding the service because the dementia was not the “original condition” appears to add words which are not found in s117(6).

Afeworkpredates the statutory definition and derived the “original condition” requirement from the concept of “after-care”. Parliament subsequently chose broader wording referring to the person’s current mental disorder and mental condition, rather than the condition for which they were originally detained.

If I’m correct (which, let’s be honest, is unlikely) that might mean that Afework would be differently decided today provided the injury was debilitating enough that, without support, the person’s mental condition was likely to deteriorate to the point that hospital admission became necessary.

7

I think we probably are right. I wonder what @jonesrm thinks!

8

https://hansard.parliament.uk/Lords/2013-10-16/debates/13101672000799/CareBill(HL)#contribution-13101684000014 Quote below -

I accept that the Government have made some concessions on this issue. For example, concerns were raised that the definition in the Bill refers to, “the mental disorder”, which might refer only to the medical treatment of a single diagnosis, rather than looking at a person holistically. In response to these concerns, amendments have been tabled by the Government to make it clearer that Section 117 after-care services are to meet needs,

“arising from or related to the person’s mental disorder”.

That can mean one or more mental disorders, and not necessarily the mental disorder for which the person was detained in hospital for treatment.

9

Thank you for this. Further down that’s confirmed by the government’s front-bench spokesman Earl Howe (emphasis added):

I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.

So either the statute is clear, or Hansard can be used to clear up any ambiguity. Cool.