The MOJ are insisting that P is discharged to a supported living placement. P has a house of his own and pays council tax and mortgage. If he moves to supported living he will have an added housing burden as he wouldn’t be entitled to housing benefit and would have to pay council tax in his supported living placement. This would put him in financial difficulty and anxiety. We propose that he return to his own home with a substantial package of care similar to supported living. What can we do to challenge that the RC is agreeing with MOJ.
This response is not regarding a challenge to the MoJ’s demands, but more about the financial implications.
The person will be subject to s117 aftercare on discharge from hospital after detention on s37.
I’m making an assumption that the person is subject to s37/41 and a conditional discharge is planned. Otherwise what powers would the MoJ have to make such a demand?
If an explicit requirement of his aftercare is living in enhanced specialised accommodation, then surely the accommodation must be considered as part of the aftercare plan.
Standard accommodation (a simple ‘roof over the head’) cannot be considered mental health aftercare, but a number of Ombudsman’s declarations have indicated that something such as this, where it is for example a condition of discharge, should be considered “accommodation plus” and be an explicit part of the aftercare.
In that case, there is no power to charge for the accommodation, and it will be the responsibility of the LA/ICB to pay for the supported accommodation (including rent, council tax and service charges).
See Local Government Ombudsman’s determinations 18 010 781 (LB Lewisham) and 19 002 160 (Solihull MBC).
The tribunal can disregard the MoJs wishes and frquently does. The MoJ can impose further conditions after a tribunal discharge but they do not usually do this,
I see the difficulty here as the RCs agreement rather than the MOJs view. If the RC was onboard with P returning to his house, then you could proffer an aftercare plan to the Tribunal who could discharge without MoJ input (and the MoJ would just need to suck lemons).
I’d try to flip the RC then present an MDT-backed discharge plan to the Tribunal. At the end of the day, it’s a forensic psychiatrist vs an MoJ caseworker - the clinical opinion (and common sense) should prevail.
Hi Judith, my advice would be to focus on high quality s117 aftercare planning. To do this its important to better understand why the MoJ is taking that position.
What risks have MoJ identified that they believe will be mitigated by supported accommodation and are there any other alternate ways of mitigating those risks that the MoJ would consider as acceptable? Has the structure of the alternatives been properly described in sufficient detail as to assure MoJ the risks can be mitigated?
All MHCS workers are civil servants, not clinicians or practitioners, however they are skilled in the job they perform which is assessing the risk to the public and managing that risk.
Taking a clinician vs caseworker approach or seeking to ally the RC against the MoJ will not be helpful for the person at the centre, the restricted patient. Such positions could lead to appeals against tribunal decisions which could delay discharge overall.
I have found the workers within MHCS to be very approachable when needing to discuss such complexities and differing opinions. I have even seen them accept invitations to professionals meetings to progress discharge planning which has been very helpful in moving things forward. Good communication, collaboration and engagement with them is what will achieve what is best for both the person and for the public.
Its also important to note that it is unlikely that their position is purely the view of one caseworker as conditional discharge applications are often reviewed by their more senior staff such as heads and deputy heads of casework teams.
Their contact details are available here HMPPS Mental Health Casework Section contact list - GOV.UK I’d suggest you give them a call or drop them an email to arrange a discussion and work it through with them, have the person’s details and MHCS reference number available so they can quickly locate the person’s records.
I’m confident you’ll be able to find common ground and achieve a discharge for this person.
It seems to me that the patient needs legal advice from a MH solicitor who could obtain an independent report looking at the risks of discharge to his property. Even if the MoJ have a current exclusion zone which includes the house the tribunal do not have to accept that on discharge.