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Housing for people with mental health needs

This content applies to England

Most accommodation for people with mental health needs is provided under section 18 of the Care Act 2014. However, where a person 'ceases to be detained' under the Mental Health Act 1983, s/he is eligible for aftercare services, including housing. In this case the assessment will be made under section 47 of the National Health Service and Community Care Act 1990.

For more information on accommodation through the Care Act 2014, see the page on Access to housing with care and support.

Detention under the Mental Health Act 1983

Detention under the Mental Health Act is for a variety of reasons. People can be admitted and detained under:

  • section 2 for assessment
  • section 3 for treatment
  • section 37, 45A and 47 for treatment following criminal proceedings
  • section 48 for treatment whilst on remand, or while detained under immigration law, or whilst a civil prisoner.

Aftercare services under the Mental Health Act 1983

When a person who has been detained under sections 3, 37, 45A or 47 of the Mental Health Act ceases to be detained, the former patient must be provided with aftercare services under section 117 of the Act.[1] The duty will be owed regardless of the financial resources available to the person who was detained.[2]

The duty continues until both the health and social services authorities are satisfied that the person no longer needs those services.

The duty does not apply to those admitted and detained for assessment under section 2 of the Act.

Assessment of needs

Before providing aftercare services, social services must carry out an assessment of the needs of the previously detained person, and decide which (if any) services are required to meet those needs.[3] Social services must consult with the person and, if appropriate, with her/his carers, on the service(s) they are considering providing, and must try to reach agreement on what services to provide.[4] They should also produce a written record of the agreed support plan.[5] In one case, where a local authority failed to explain a reduction in care services and failed to provide a revised support plan after a change in circumstances, the Court quashed the decision and required the authority to re-assess the applicant.[6]

Which authority?

The duty will fall on the local authority in whose area the person resided before her/his detention, not on the local authority where the hospital is situated.[7] In one case, a person who had been detained, conditionally discharged into accommodation in a different local authority area, and then recalled to hospital also in a different local authority area, was still owed the duty under section 117 by the authority that made the original detention order. The 'chain of causation' between the original order and subsequent addresses had not been broken.[8]

Where there is a dispute about which authority is responsible for providing aftercare services, the dispute resolution procedure is laid out in the Care Act 2014.[9]

Types of aftercare services

Aftercare services could include:

  • specialised accommodation
  • advice
  • guidance
  • counselling
  • recreational activities.

Ordinary accommodation cannot be provided under section 117. Accommodation can only be provided where it:[10]

  • meets a need related to the person's mental ill health, and
  • reduces the risk of the person's condition deteriorating.

The person has the right to express a preference for particular accommodation. Social services must meet this preference provided it is:[11]

  • of the same type that social services has decided to arrange
  • suitable for the adult's needs
  • available
  • affordable, using a 'top-up' if necessary (see below)

Charges for after care services

Services provided under section 117, including accommodation, cannot be charged for.[12] Where the aftercare service is accommodation, if the persons preferred accommodation would cost more than social services would normally pay, a 'top-up' can be made in certain circumstances.[13] For more information, see the section 'choice of care home' on the page Older people: care homes.

Lack of mental capacity

If a person lacks the mental capacity to sign a tenancy agreement, any one intending to sign the agreement on the person's behalf can only do so with the authorisation of the Court of Protection. This situation principally arises when an adult with learning disabilities is moved from hospital or a care home into supported living arrangements in the community. Normally, the Court's authority must also be sought in relation to signing an agreement to terminate the tenancy. Guidance notes (COP GN6) on how to make an application for authorisation in these circumstances are available from the Court of Protection.

It remains the duty of the authority to ensure a person lacking capacity receives the appropriate assistance regardless of her/his financial resources, unless s/he has a 'deputy' or other personal representative to act on their behalf. Even if the person has sufficient financial resources to fund her/his own care, in these circumstances the authority must ensure accommodation is provided.[14]

Deprivation of liberty

In some cases the provision of suitable accommodation to a person lacking mental capacity may involve depriving that person of her/his liberty under article 5 of the European Convention on Human Rights (ECHR), for example, ensuring that a person cannot leave premises alone where to do so would place them at risk. The Court of Protection must authorise any such deprivation of liberty, and must do so on at least an annual basis. The Court will consider whether the deprivation of liberty is necessary and proportionate, and in the best interests of the person concerned.

In a case where a severely disabled adult, who usually mobilised in a wheelchair, was provided with accommodation which, amongst other problems, was too small for his wheelchair to be used indoors so that he had to crawl or pull himself along by holding on to the furniture, and where there was no outside space that he could access himself, the Court of Protection refused to authorise the continuing deprivation of liberty this entailed. The Court required the authority responsible for the respondent's care to take all necessary steps to avoid breaching his ECHR rights. The question was not whether the deprivation was acceptable because there was no suitable alternative accommodation available,  but whether the person's continued mental condition justified the deprivation of his liberty.[15]

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.117 Mental Health Act 1983 as amended by ss 74 and 75 Care Act 2014.

[2] Tinsley v Manchester CC & South Manchester Clinical Commissioning Group (interested party) [2016] EWHC 2855 (Admin).

[3] s.47(1) National Health Service and Community Care Act 1990.

[4] Community Care assessment Directions 2004.

[5] para 121 'Prioritising need in the context of Putting People first: A whole system approach to Eligibility for social care', statutory guidance on eligibility criteria for adult social care, Department of Health, 25 February 2010.

[6] OH v Bexley LBC [2015] EWHC 1843 (Admin).

[7] s.117(3) Mental Health Act 1983 as amended by s75 Care Act 2014; R (on the application of Sunderland CC) v South Tyneside Council and (1) SF (2) Leeds CC (Interested parties) [2012] EWCA Civ 1232; R (on the application of Hertfordshire CC v Hammersmith and Fulham LBC [2011] EWCA Civ 77; R (on the application of Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin).

[8] R (on the application of Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712.

[9] s.40 Care Act 2014.

[10] s.117(6) Mental Health Act 1983 as amended by s.75 Care Act 2014.

[11] reg 4 Care and Support and After-care (Choice of Accommodation) Regulations 2014 SI 2014/2670.

[12] R v Manchester CC ex parte Stennett [2002] UKHL 34, (2002) 4 All ER 124.

[13] reg 5 Care and Support and After-care (Choice of Accommodation) Regulations 2014 SI 2014/2670.

[14] Aster Healthcare Limited v Batool Shafi [2014] EWCA Civ 1350.

[15] North Yorkshire County Council v MAG [2015] EWCOP 64

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