Section 117 Aftercare

In August 2023, the Supreme Court ruled on an ordinary residence dispute between Worcestershire County Council and the Secretary of State for Health and Social Care (referred to as the Worcestershire case).

When the person was first admitted for treatment under the Mental Health Act 1983, they had been ordinarily resident in Worcestershire. In line with Section 117(3), when they were discharged, Worcestershire County Council assumed responsibility for their Section 117 Aftercare.

Worcestershire arranged and funded Aftercare services in a care home close to family that was geographically located in Swindon.

A year later, the person’s mental health deteriorated, and they were readmitted to hospital for treatment. The dispute arose at the point when they were discharged from this second admission as Worcestershire County Council were of the view that responsibility for their Section 117 Aftercare now lay with Swindon Borough Council.

The Supreme Court agreed with Worcestershire on the following basis:

1. When a person is provided with Section 117 Aftercare services in another geographical area, their ordinary residence changes in line with its natural meaning;
2. If the person is subsequently compulsorily detained for further treatment in hospital (under Section 3 of the Mental Health Act 1983), the duty placed upon the original Integrated Care Board and Local Authority area to provide Section 117 Aftercare ends (because, as they are detained, the person is no longer in need of aftercare services);
3. When the person is discharged from hospital the second time, at the point of discharge a new duty to provide Section 117 Aftercare arises. This has no relation to any previous duty that applied prior to their readmission. The new duty applies to the Integrated Care Board and Local Authority in which the person was ordinarily resident immediately prior to their second admission.

In light of this ruling, it is anticipated that the government will provide updated guidance but, until then, legal advice should be sought when there is any doubt.

Although the duty to provide aftercare services begins when the person leaves hospital, planning should start as soon as possible after they are admitted.

Integrated Care Boards (ICBs) and local authorities should take reasonable steps to identify appropriate aftercare services for people in good time for their eventual discharge from hospital.

Aftercare planning requires a thorough assessment of the person's needs and wishes. It is likely to involve consideration of:

• Continuing mental healthcare;
• The psychological needs of the person (and of any informal carers);
• Physical healthcare;
• Daytime activities or employment;
• Appropriate accommodation - if the aftercare plan includes the provision of accommodation, and the person has committed one or more criminal offences, the circumstances of any victims of the offence(s) and of their families should be taken into account when deciding where the person should live;
• Identified risks and safety issues;
• Any specific needs arising from, for example, co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
• Any specific needs arising from drug, alcohol or substance misuse;
• Any parenting or caring needs;
• Social, cultural or spiritual needs;
• Counselling and personal support;
• Assistance in welfare rights and managing finances;
• The involvement of authorities and agencies in a different area, if the person is not going to live locally;
• The involvement of other agencies, for example the National Probation Service or voluntary organisations;
• Any conditions likely to be imposed by the Secretary of State for Justice or the Tribunal;
• Contingency plans (should the person's mental health deteriorate); and
• Crisis contact details.

In order to ensure that the Aftercare Plan reflects the full range of needs of the person, it is important to consider who needs to be involved. Subject to the consent of the person (or in their best interests if they lack capacity to consent), this may include:

• The person's responsible clinician;
• Nurses and other professionals involved in caring for the person in hospital;
• A practitioner psychologist, community mental health nurse and other members of the community mental health team;
• GP and primary care team;
• Any informal carers who will be involved in looking after the person outside hospital including;
• The persons' nearest relative (as defined in Section 26 of the Mental Health Act 1983) or other family members;
• A representative of any relevant voluntary organisations;
• Multi-Agency Public Protection Arrangements (MAPPA) co-ordinator if applicable;
• National Probation Service if applicable;
• A representative of housing authorities, if ordinary accommodation is an issue;
• An employment expert, if employment is an issue;
• The ICB's appointed clinical representative, if appropriate;
• An Independent Mental Health Advocate, if the person has one;
• An Independent Mental Capacity Advocate, if the person has one;
• Attorney/Deputy if applicable;
• An individual to whom the local authority is considering making Direct Payments;
• Any other representative nominated by the person; and
• Anyone with authority under the Mental Capacity Act 2005 to act on the person's behalf.

The practitioners concerned, in discussion with the person, should agree an outline of the person's needs and a timescale for implementing the various aspects of the Aftercare Plan. All key people with specific responsibilities should be identified.

It may be important that those who are involved in discussions about the Aftercare Plan are able to make commitments about their own continuing involvement and the services to be provided or commissioned. If so and the worker needs to seek approval for this from their organisation, extra time must be set aside for planning so that this causes no delay or detrimental impact to the implementation of the Plan.

People with ASD or learning disabilities

Professionals with specialist expertise should be involved in aftercare planning for people with autistic spectrum disorders or learning disabilities.

Young people in transition

Aftercare planning should take account of the young person's age and should involve their parent/carer unless there is a good reason not to. This will ensure that they will be ready and able to provide appropriate assistance to the young person.

It should be clearly recorded on the final Aftercare Plan:

1. That the person is eligible for Section 117 aftercare and the basis for this determination;
2. Which services are to be provided as part of Section 117 aftercare;
3. Who the named Care Co-ordinator is (who has overall responsibility for co-ordinating the preparation, implementation and evaluation of the Plan).

Included within the Aftercare Plan should be:

• A Treatment Plan which details medical, nursing, psychological and other therapeutic support for the purpose of meeting the person's individual needs promoting recovery and/or preventing deterioration;
• Details regarding any prescribed medications;
• Details of any actions to address physical health problems or reduce the likelihood of health inequalities;
• Details of how the person will be supported to achieve their personal goals;
• Support provided in relation to social needs such as housing, occupation, finances etc.
• Support provided by carers (both formal and informal);
• Actions to be taken in the event of a deterioration of the person's presentation; and
• Guidance on actions to be taken in the event of a crisis.

Aftercare Plans should also include details of any areas of need which are critical to preventing ‘behavioural disturbance’ and should provide guidance on how staff/carers should respond if behavioural disturbance does arise.

Note: Plans should not place undue reliance on the person's carers and other informal networks of support.

The Aftercare Plan should be regularly reviewed.

It is the responsibility of the named practitioner/agency to arrange reviews of the Plan until it is agreed between all parties, including the person, that aftercare services are no longer needed.

Section 117 Aftercare: Guidance for Practitioners (Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman) states that eligibility for Section 117 should be reviewed by the Integrated Care Board (ICB) and local authority within six weeks of discharge from inpatient services, then annually thereafter, or sooner if circumstances change.

For further guidance see Section 8, Ending Aftercare Services

People eligible for Section 117 aftercare have a legal right to request a personal health budget (PHB) to meet the cost of services commissioned in their Aftercare Plan by the ICB.

A PHB is planned and agreed between the person and the responsible ICB.

Integrated Care Boards (ICBs) have a duty to publicise the availability of PHBs. They must also provide guidance, advice and support to eligible people to assist them in deciding whether to request a PHB.

ICBs must give due consideration to a request made by, or on behalf of, an eligible person for a PHB.

A PHB may be considered as part of the discharge planning process, when assessing the person's Section 117 aftercare needs during their hospital admission. It may also be considered during any subsequent review of the person's aftercare in the community.

People eligible for Section 117 aftercare have a legal right to request a Direct Payment to meet the cost of services commissioned in their Aftercare Plan by the local authority.

The local authority must provide a Direct Payment when:

1. The person has the capacity to request a direct payment; and
2. If there is a nominated person, that person agrees to receive the payment; and
3. The personal who will be receiving the payment is capable of managing it (either on their own or with available help); and
4. The Local Authority is satisfied that a Direct Payment is an appropriate way to meet the needs in question; and
5. The Local Authority is not prohibited from making a Direct Payment (see below).

The local authority must not provide a direct payment when the person is going to be subject to a requirement, license or order under criminal legislation that requires them to undertake drug or alcohol rehabilitation, behaviour therapy or testing.

For further guidance see: Direct Payments

The following information has been taken from Section 117 Aftercare: Guidance for Practitioners (Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman)

• Councils and ICBs must ensure everyone who is entitled to Section 117 aftercare receives a robust assessment of their mental health needs arising from, or related to, the person's mental health condition;
• Everyone entitled to Section 117 should have their care needs assessed in line with the CPA framework (now Community Mental Health Framework). Care should be planned in line with the outcome of that assessment, which in most cases will mean care should be provided under CPA (now Community Mental Health Framework);
• Care and support plans should clearly state what services will meet needs arising from the person's mental health condition under Section 117. The support should ensure it reduces the chance of them being detained under the Mental Health Act;
• The care plan should be recorded in writing and a copy shared with the person and any other relevant parties;
• Councils and ICBs must not delay arranging Section 117 aftercare. Planning for Section 117 aftercare should start as soon as the person is admitted to hospital;
• Care and support plans should be regularly reviewed. Reviews should include the person and other relevant parties;
• People should not be paying for services which meet their mental health needs under Section 117, including specialist accommodation;
• The decision to discharge someone from Section 117 should be a joint one (by the council and the ICB);
• The council and ICB should fully involve the person when they decide to end that person's Section 117 aftercare;
• Organisations should have clear joint working arrangements around Section 117. This should include clearly defined roles about who will commission and/or provide Section 117.

Mental Health Act 1983: Code of Practice Chapter 33 After-care

Statutory guidance: Discharge from mental health inpatient settings 

Community Mental Health Framework for Adults and Older Adults

Section 117 Aftercare: Guidance for Practitioners (Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman)

Self-harm: Assessment, Management and Preventing Recurrence NICE Guidance