Housing for people with mental health needs
Where a person ceases to be detained under the Mental Health Act 1983, they are eligible for after care services, including housing.
Provision of accommodation for people with mental health needs
Most accommodation for people with mental health needs is provided under section 18 of the Care Act 2014.
Where a person 'ceases to be detained' under the Mental Health Act 1983, they are eligible for aftercare services, including housing. In this case the assessment is made under section 47 of the National Health Service and Community Care Act 1990.
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 is 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, or when the person is newly detained in another area and another local authority becomes responsible for their aftercare services.[3]
The Department of Health and Social Care has provided guidance on determining ordinary residence for local authorities.
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.[4]
Social services must consult with the person and, if appropriate, with their carers, on the services they are considering providing, and must try to reach agreement on what services to provide.[5] They should also produce a written record of the agreed support plan.
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 falls on the local authority in whose area the person resided before their 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 meets a need related to the person's mental ill health, and reduces the risk of the person's condition deteriorating.[10]
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
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]
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 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 their financial resources, unless they have a 'deputy' or other personal representative to act on their behalf. Even if the person has sufficient financial resources to fund their 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 their 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]
Last updated: 17 August 2023