S117a and Care Act Assessment Eligibility

[Kinloss (Tom)]

In the case of a child (17yo) who was detained under a S117a qualifying section where there is a duty on the relevant statutory bodies to provide aftercare to meet assessed needs relating to original MHA detention for treatment. Both ICB/CCG and Local Authority are the same responsible area.

Current hospital and health bodies have discharge recommendations for treatment beyond the locality service offer. However, adult social care have conducted a care act assessment and concluded there are no adult social care needs to meet - therefore indicated no participation in S117 planning or funding. There has also been discussion around the individual having fluctuating capacity - and it was suggested this is therefore exclusively a health responsibility to meet needs around discharge.

What (if any) are the legal duties and responsibilities of the local authority / social care if they do not believe that any care act or aftercare needs are required upon discharge from hospital?

My understanding that eligibility for S117a and the care act assessment are two seperate processes, can anyone confirm if there there are clear links drawn between them? I am mindful that no overarching guidance is given on funding splits. I wondered therefore as to whether the care act assessment evidences towards a funding matrix (should a split cost be discussed).

Finally, is there any precedent or case law around the concept of fluctuating capacity impacting funding splits?

Thank you very much for your time and support.

[SteveC (Steve Chamberlain)]

It is important to be aware that the duty on the local authority to assess for community care needs for an adult does not originate from the Care Act 2014, although it is almost universally referred to as a Care Act assessment. The duty comes from the NHS and Community Care Act 1990 section 47. This was set out clearly in the DHSC statutory discharge guidance issued in early 2024.

It is important to be clear that the Care Act eligibility criteria do not apply here, and there is a free-standing joint responsibility on the local authority and the NHS is to prevent deterioration of mental health which may lead to readmission to hospital for treatment.

The reality is, I believe, that most social care assessments for s117 after-care use Care Act documentation, mainly because that is the standard documentation used by local authority adult care services. But it is not a Care Act assessment, despite just about everyone referring to it as such.

Now this person is 17 so not yet subject to adult social care legislation, but s117 applies equally to all ages, so whatever services are required to prevent mental health deterioration and possible readmission will come within the s117 remit.

It may be that the local authority genuinely believe that there are no social care needs which come within this young person’s s117 after-care plan. It seems a little surprising for a young adult, but I wouldn’t want to comment on the veracity of that assessment of course.

But while the person remains subject to s117 aftercare, the local authority cannot in my view simply wash their hands of them. There is a clear expectation set out in the MHA Code for local authorities to keep a record of service users subject to s117, although that focuses on people receiving services. The important thing in my mind is if the person develops social care needs as s/he matures and if the mental disorder changes, then the duty remains on the local authority as well as the NHS to provide after-care.

There are very many examples of people lost to services where s117 after-care has not been ended, but who relapse and are readmitted without the awareness of the ongoing after-care duties.

NB. It is of course possible that this person has additional physical needs which are not related to their mental ill health, and which will not be part of their s117 care plan. In that case, the local authority will have a standard duty to assess under the Care Act and make decisions (including eligibility) about needs and how to meet them.

[Lizzi (elizabeth sgoluppi)]

Hi Tom

I am no expert, so apologies if I get this wrong. I believe that S117 Aftercare trumps the Care Act, so when I am doing an assessment where I am considering S117 needs and care act needs, I will record all needs regardless of care act eligibility. The care act requires a person to be eligible in 2 domains by meeting the established criteria for support. S117 does not request a certain amount of domains to be met, it just requires the need to be relevant to the detention. You can find someone ineligible under the care act, but if the S117 need (relevant to detention) has been determined as a social care need, it can still be met by social care, as part of the agreed S117 Aftercare plan. Once I’ve gathered all the information regarding needs I then have to work out where each one fits before making a final decision.

[Walaro1 (Wendy)]

Thank you for this. I am so tired of hearing local authority social workers saying they are going to do a Care Act assessment and then finding they do not have any needs under Care Act. This problem seems to be exacerbated where local authority does not have a.75 agreement in place with Mental Health Trust and many of the assessing Social Workers (happily some exceptions!) do not have an understanding of how a person’s social circumstances post discharge may contribute to a deterioration in someone’s mental health and may lead to readmission. It is not just about the domains as set out under the Care Act.

Social.isolation and support for re engagement with community is key to someone’s recovery but this for example is never mentioned by those doing Care Act. Focused assessments. In 6 years on an inpatient setting I have only seen one patient considered for a service provided under s.117. It all seems be a tick box exercise now where the patient is often not even seen in-person by assessor.

[TimGorvett]

Isn’t the really interesting question here what it means to have a joint duty with the ICB in these cases? I have often wondered about it.

Everyone is familiar with the statutory requirement on the local authority not to provide any health-related service except as insofar as it is incidental or ancillary to a social care service (s.22[1]a Care Act), but this is in relation to the Care Act, is it not, to meeting care and support needs identified under s.13(1) of that Act and relating to the duties and powers set out in ss.18-20 of the same. Surely none of that releases the local authority from a joint duty to provide aftercare under s.117?

The only thing that does that, is the patient ceasing to have s.117 aftercare needs altogether. It is meaningless to discharge a patient from s.117 on the grounds that they have no social care aftercare needs, and no provision exists to do so, I think. As Steve also says, a patient may in any case develop social care aftercare needs meeting the description in s.117 later on (or even quite soon, if things are as they may well be here)-and the duty is not tied to the specifics of this discharge.

But even allowing that there is no meaningful guidance on sharing of funding, and the ICB may well let their partner get away with not funding in purely health-care cases, does the local authority’s joint duty not extend to providing or arranging to have provided, any qualifying aftercare service that is needed in such a case as this? With no get-outs?

[autolycos]

MHA S117 is separate from the Care Act although some issues can overlap. S117 aftercare is an absolute legal entitlement that does not need to be assessed. However it seems that many social workers are only trained in the Care Act and tick the “job done” box by doing an annual Care Act assessment. This blinkered approach makes them blind to any obligations under S117. The fault here is with their management and this may be the primary cause of the issue. Perhaps a failure to keep themselves, and their social workers, adequately trained in responsibilities under current legislation.

My relative, a disabled young adult, was detained under an S117 qualifying section some years ago. The family were unaware what S117 aftercare was, and social services were unhelpful in that all that they did was to follow their Care Act responsibilities. Until we asked about S117 reviews the only mention of S117 was a simple assessment as part of the annual Care Act review to get partial funding from the ICB even though no specific S117 aftercare services were being provided. We also learned that social services had lost touch with hundreds of people who were entitled to S117 aftercare.

Responsibility for S117 aftercare is shared jointly with social services, the NHS, and the ICB. As part of the discharge process there must be an S117 aftercare plan in place. I found this recent comprehensive statutory guidance on the discharge process: https://www.gov.uk/government/publications/discharge-from-mental-health-inpatient-settings/discharge-from-mental-health-inpatient-settings. Perhaps local services have not read this yet. A social worker manager once told me that “guidance is not law” but the purpose of the guidance is to assist agencies, such as social services, in following the law. If they don’t follow guidance then they will have difficulty demonstrating that they followed the law.

Social services, the NHS, and the ICB will have a documented S117 policy. This policy will have provision for regular (at least annual) S117 reviews and a process for discharging from S117 if it is no longer needed. S117 can not be bypassed (see https://forum.mentalhealthlaw.co.uk/t/section-117-can-the-duty-be-ended-before-discharge-based-on-an-assessment-that-there-are-no-aftercare-needs/1093) or ended just by discharging from secondary care, or a refusal to take prescribed medication. The review process is important in monitoring the purpose of S117 aftercare, i.e. preventing a relapse, and requires the participation of a Responsible Clinician, and a Care Coordinator. Getting a review may only be part of the problem as our family’s experience is that organisations did not understand or admit their responsibilities even after three complaints to the ombudsman. See: s117 MHA 1983 and ‘entrenched indifference’ – Luke Clements

If this issue cannot be sorted out amicably with social services consider using their complaints process. If the response is not satisfactory then take it up with the Local Government and Social Care Ombudsman.