For practitioners acquainted with the decision in R(Afework) - have you ever had any experience with LAs/ICBs pushing back on providing S.117-funded accommodation because the patient doesn’t meet the third “condition” (below)?
iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.
In my experience, everyone seems to ignore this bit as “bad law” (and no wonder given there’s no legal principle behind it other than Mostyn Js view at para 18). Has this cropped up in practice for any lawyers/social workers?
It’s a while since I’ve read it all, but my notes from 2013 say:
The claimant in this case was a refugee on whose behalf it was argued that detention 19 years earlier meant he was entitled to free accommodation under s117. The judge went further than in Mwanza and decided that ordinary accommodation could never come within s117. The reference to the ‘original condition’ arose because the claimant had suffered brain injury in an attack in 2000, and the need for accommodation arose from this later condition. No obvious reason is given for the requirement for involuntariness (and it is unlikely to be correct).
I think the link with the original condition and the reference to capacity were probably both overtaken by events when the Care Act 2014 provided a statutory definition of after-care. To answer your question, I’ve never seen it crop up in practice.
I have been concerned about this too. As Zak S says, the requirement to be ‘incapacitated’ in order to receive accommodation under s.117 stems from Mostyn J’s judgment in the Afework case. He declared it to be so ‘as a matter of law’. As far as I am aware, there is no legal basis for the stipulation at all, so why he thought it was a legal requirement is frankly mystifying.
Like Jonathan I think most practitioners just ignore Mostyn’s statement as bad law. Unfortunately, though, the Local Government and Social Care Ombudsman still trots it out as an essential requirement for getting aftercare accommodation- see for example his decision in Complaint against Cheshire East Council (23 005 368). The LGSCO also seems to think that aftercare can only be provided under s.117 in relation to the original mental condition, despite the Government’s clear statement to Parliament in 2014 that the new s.117(6) was intended to go much wider (see Richard Jones’ commentary on this).
(I assume that the Ombudsman feels obliged to follow case law, even though it was over a decade ago and was pretty definitively superseded by the new statutory language in 2014. Does anyone have ideas as to how his thinking can be corrected?)
This is interesting. I can find recent Ombudsman decisions with a bullet point stating that “the need for the accommodation arises from, or is related to, the reason the person was detained in the first place”, but didn’t come across any others that rely on the involuntary/incapacitated idea. That was only from a quick search, though, so it would be good to hear more. One of the problems might be that they destroy all their decisions that are more than five years old.
Thanks, Jonathan. I have looked back at the LGSCO Cheshire East decision I mentioned earlier, and recognise that I was a little unfair to the Ombudsman, as he did not himself raise the ‘involuntary/incapacitated’ requirement. It was instead part of the argument made by Cheshire East Council. See para 38: " The Council and the ICB agreed Miss D’s need for accommodation is a direct need resulting from her detention under the MHA. They did not agree she lived in specialised accommodation or that she was being placed in accommodation involuntarily due to a lack of capacity arising from her mental condition."
However, the Ombudsman seems to have accepted the premise of the argument because he rules at para 48: “Therefore, it is likely, on balance, Miss D was placed (from 2010) in the accommodation on an involuntary basis because of her original condition”.
I appreciate that the Ombudsman cannot simply overrule a High Court judgment, particularly as it formed part of the Council’s case. However, it does indicate that the ‘involuntary/incapacitated’ issue is still raised and taken seriously.
As far as I am aware, there has been no High Court ruling on the scope of s.117 since s.117(6) came into force. I very much hope that a suitable case will soon go for judicial interpretation. It’s high time that Afework (and Mwanza before it) were superseded by a ruling based firmly on the statutory wording, which has been in force for a decade.