Section 117 accommodation for patient excluded from co-owned matrimonial home

Law and practice Mental Health Act
1

Hi everyone,

I’m desperately trying to advocate for a family member (let’s call them X) who was detained under MHA s.3 and is now entitled to s.117 aftercare. I am acting as their advocate now and trying to get support where I will need to be speaking with their social worker. For anonymous purposes I am deliberately avoiding using identifiable information

For complete transparency, I have also used AI to help structure and format this post as I have difficulties with typing. I have ensured that all facts are accurate and used speech to text for most of this writing except where AI has helped me with formatting.

X has been in and out of mental health hospitals for several years, but this is their first time being detained on a Section 3. Recently, they have separated from their spouse in the last month. The spouse has historically provided excellent care and support, meaning X is now facing the need to find their own independence and appropriate living situation for the very first time during this period of recovery.

X is currently totally excluded from their co-owned matrimonial home because the assessed risks related to their mental disorder make it unsafe for the people living there, specifically their separated spouse and their minor child.

The local authority/ICB are pushing back hard on funding supported/assisted living accommodation. They are focusing on the fact that X technically owns a share of the property and seem resistant to funding this level of specialist support. I am concerned they will force this family member into selling their asset.

This seems wrong to me because the whole reason they need this level of specialist accommodation is directly linked to their mental disorder, the need to manage risk, and the sudden loss of their primary support system (the separation) which is necessary to prevent readmission (the core S117 test). They have no other safe place to go that meets their needs.

My main questions for the forum are:

How do I counter the argument that this level of supported / specialist accommodation is unnecessary? Given the history of instability and the sudden need for independence, how can I best argue that supported/assisted living is a necessary aftercare service because of the specific risk situation and the need to establish independence to prevent relapse?

Does the fact that they co-own the property (which is occupied by the spouse and minor child) legally weaken the case for a fully funded s.117 accommodation package?

If anyone knows of any case law or specific guidance (beyond Who Pays and Worcestershire) that deals with a s.117 patient who is excluded from a family home with a minor, that would be incredibly helpful as I begin to support my relative throughout this process of Accessing appropriate aftercare.

Thanks so much for any advice. This is really stressful and I want to support them as best as I can.

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These are immensely complex issues and you really need the assistance of an experienced MH lawyer. These issues could and should be raised and debated in a Tribunal. Either X or the nearest relative could seek free advice about the best way to proceed.

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Agree with the previous response that these are complex issues which cannot be adequately responded to on this forum, but to add that a Tribunal won’t have any authority to make decisions regarding s117 aftercare. The Tribunal only considers whether or not to continue detention (or other restrictions under the MHA).

Sounds like there are two issues at play here. On the one hand, the local authority cannot lawfully argue that they will not provide necessary s117 aftercare because a person has sufficient assets (financial or bricks-and-mortar), but on the other hand there may be a dispute regarding whether or not the person does in fact need supported accommodation (sometimes referred to unofficially as “accommodation plus”) to avoid the risk of readmission. This would be a difference of opinion regarding the person’s actual level of needs for aftercare, and is much more of a nuanced issue.

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Thank you both for your comments. To add, I have learnt that s117 is focussed on the health needs stemming from mental illness and does not account for any physical health needs. To complicate matters further, this relative also has multiple physical health needs. These needs they mostly manage themselves as independently as they can (with exception to transport), but of course do find themselves restricted from accessing many things and have regrettably isolated themselves over the years, perhaps largely due to the inaccessible nature of the world and how they have found it difficult to manage with their conditions. So I think the “test” for whether s117 support will extend to supported accommodation may depend on how much heavily weighted the needs of this relative are on mental health support as opposed to the physical issues they live with day to day. The social worker is conducting a care needs assessment and I have queried application of the relevant legislation and was confirmed that this is in accordance of 117. With this added info, I would be grateful for any additional advice or guidance as I navigate this situation with my relative. Thank you!

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This is indeed complex and I think it’s important to get some face-to-face advice from a professional advocate or a solicitor with mental health expertise.

You are right that needs arising from the person’s mental disorder will come under section 117 aftercare, and therefore cannot be charged for, but physical needs, which are not related to the mental disorder, will not be covered by s117 and will come within the remit of a Care Act assessment (for which there are specific eligibility criteria), and any services which are provided to address those needs will be charged through a means test.

It’s not always simple separating out services for mental health and physical needs. Sometimes the differentiation is straightforward but not always. However, any care plan which is drawn up for the person should be explicit in setting out which supports are being provided under s117 and which are being provided under other legislation (I haven’t even mentioned Continuing Health Care, which applies to the most complex physical health care and is assessed by the NHS)

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  1. Make sure you have a letter from your father saying you may act on his behalf. Copy this into every line of enquiry you start.

  2. It is important to start the complaints procedure with PALS. Do this via email on line. screen shot/copy everything. Phone calls are pointless and time wasting, if you can get through. The sooner you do this the quicker you can move or use the law. This will mean stating why you feel the named care coordinator has not achieved an adequate outcome for your father.

Have you a copy of his care plan with dates and details? If not request it. If you do ask for supporting documentation. Get the names and dates. They have a month to give you this or mark it complex which gives them an additional two months.

3. Use names of nurses, RCs doctors and especially social workers and council individuals. Log the time of each phone call and write down what you recall being said. Then ask of an email to confirm this recollection. Always ask for an email address.
Request all records and follow up if you have not received them in a month. In emails always ask for a reply and follow up in accordance with the regulations. If they attach an ‘if you are not satisfied’ form or leaflet or link, follow that. This will happen, so don’t be disheartened, they want you to go away so don’t see it as a ladder not a snake.

4. You will need a final letter from PALS before you can proceed, don’t give up - keep pushing through the list of ‘next steps’ with ICB, once you have their email and details.

5. Pay a solicitor to help you. If this is too expensive try legal aid, but it is probably near impossible to find one with time and energy to take you on. Filling in solicitors forms will clarify things and give you an idea how to structure things so think of it as a lesson and a request. Try though with free legal aid , someone must win the lotto, and the best of luck! Then do the work yourself. AI helps- remember having got hope from AI then type in what are the other side’s arguments? Follow all online advice, this forum is excellent. Don’t just ask questions - read and see what law applies to your father. This will be clearer for you and anyone who can help. The aim is to find a specific point of law to make them act.

4. When you see any phrases (LA, care plan or whoever use), that are dodgy or unspecific i.e. informal patient, Accommodation Plus, ask for THEIR definition as it is used by the local authority (LA) or whoever used it.

5. Use ambulances if you need to - DO NOT FEEL GUILTY - you didn’t make A&E the point of entry to the system.
Best of luck,

Doris

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Thank you Steve and Doris for your helpful and thoughtful replies. I have been searching for a solicitor to take on the case but haven’t yet found anyone suitable yet or anyone who has the capacity to take this on. Many firms seem to be at capacity with mental health related cases. I will keep searching.

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Although the tribunal have no direct power in respect of making s117 orders it should be your first port of call as much can be achieved with a good MH solicitor and a helpful panel. And it is free.