A recent court judgment has clarified
further what is covered by S.117 Aftercare.
R v LB Camden, [2013] EWHC 1637, 13th June 2013, concerned a man, Mr Tewodros
Afework, who had been detained under Sec.3 MHA in 1992 & 1993. He had then
lived in a number of local authority flats with his sister, for which they
received housing benefit.
In 2000, he was assaulted and incurred
significant brain damage. As a consequence he was no longer able to live independently
and had to live in specialist accommodation. S.21 National Assistance Act 1948
applied, but he was not charged for his accommodation on the grounds of low
income.
It would appear that the application arose
as a result of Mr Afework being awarded a considerable sum of money in Criminal
Injuries compensation, which it was likely the local authority providing
accommodation would take into account when assessing his contribution to his
accommodation charges.
Mr Justice Mostyn, the judge in the case, reiterated
a number of previous cases which looked at issues of accommodation and S.117
Aftercare. In particular, the case of R (Stennett) v Manchester
City Council [2002] 2 AC 1127, looked at three cases where people who had
been detained under Sec.3 had then been charged for residential accommodation.
It was affirmed that residential accommodation came within the remit of S.117
aftercare, and could not therefore be charged for. This decision was upheld by
the House of Lords.
He also referred to Mwanza, which I have
looked at before (R v Greenwich London Borough Council and Bromley London
Borough Council, ex parte Michael Mwanza (2010) [2010] EWHC 1462 (Admin) QBD
(Admin) (Hickinbottom J) 15th June 2010, to give it its full title.)
This case involved a Zambian national who
was in this country on the basis that his wife had a student visa. He was
subsequently detained under Sec.3. He and his wife stayed in this country for
several years, during which time his wife’s student visa ran out and they were then
considered to be residing in this country unlawfully, so they were unable to
work.
They applied for accommodation and
financial support. When this was refused, he applied for judicial review on the
basis that S117 aftercare covered both eventualities, as they could be
considered to be necessary in order to prevent a deterioration in his mental
health.
The Court found that a local authority’s
duty to provide aftercare was limited to the services necessary to meet a need
arising from a person’s mental disorder. As his mental disorder had not been
the cause of his homelessness or destitution, then there was no requirement on
the local authority to meet this need.
The judge also examined the case of R (Gary Baisden) v Leicester City Council [2011] EWHC 3219 (Admin).
In this case, a man called Gary Blaisden, who had paranoid schizophrenia and
who had been detained under Sec.3 MHA in 2010, was being evicted from his
accommodation on the grounds of his antisocial behaviour. This antisocial
behaviour had arisen not by his mental illness but by his drug abuse. It was
argued that the local authority should provide him with accommodation under
S.117 aftercare provisions were he to become homeless.
The judge in this case rather sensibly
concluded:
“If the mental condition does not require
specialised accommodation with elements of support, then the duty to provide
bare accommodation is under section 21 of the National Assistance Act. In any
event, in respect of both duties the defendant says that the assessment of the
consultant psychiatrist is that it is his voluntary drug taking that is the
cause of his predicaments rather than his underlying schizophrenia that can
respond to medication. Therefore what he needs to do is to stop taking drugs
and to co-operate with his Outreach team in that respect, at which point he
will be able, if he so chooses, to manage independent living, look after
himself, abide by the conditions of his tenancy and not be a nuisance with his
neighbours.”
Based on these cases,
Mr Justice Mostyn therefore held that:
ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and
iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.”
As he found that the applicant’s need for
residential care arose entirely from his head injury, and was not the result of
his underlying mental illness, then S.117 aftercare did not apply.
The conclusion to be drawn from these cases therefore
could not be clearer:
- Residential care is certainly covered by S.117 aftercare, but only if the need for that care arises from the patient’s mental condition which resulted in their detention under Sec.3 MHA.
- Ordinary accommodation, eg a flat or house, is not under any circumstances covered by S.117.
My sister is currently under a guardianship order in Scotland.
ReplyDeleteShe was previously on a s.3 in a secure unit, helped to move to a flat but remained on a CTO (is this still classed as being on a section?)
She remained very vulnerable and unpredictable and developed diabetes.
Her local authority obtained a guardianship order and she is currently in a nursing home with stringent controls (e.g. only allowed out unaccompanied for 15 minutes)
There is no nursing need for her to be in a NH but the one she is in has four rooms upstairs for people with Korsikoffs etc.
My question to you is, if she was moved while still under the CTO to a NH can she be charged or should s.117 apply?
The CTO has been lifted and I assume that they are using the guardianship as it is 'less restrictive' (cheaper???)
I have not been consulted through these moves even though the council have my details after a period of estrangement from my sister.
It's Scottish so I'm not sure how it deviates from the English process.
(I'm a social worker myself but need specific MH advice)
Great blog BTW
Laura Walker
ReplyDeleteMy mother was detained under Section 3of the Mental Health Act in a hospital and remained there for almost 12 years. When discharged she was placed by her local authority in a care home out of her area under the Aftercare arrangements under Section 117. She has not had a Section 117 Review for three and a half years and now the local authority want to review her care arrangements.
We have not see her care plan and we have a strong suspicion that the local authority want to move my mother due to costs.
I am seeking the help of my mother's MP and also seeking legal advice about this matter.
Any useful information would help.
I also want to make a formal complaint about the way we have been treated as the above commenter says we have not been formally consulted in the initial stages and found out 'by accident' that social workers had started to review my mother's care without letting her family know formally.
What about specialist care in your own home for autism? How much will they fund?
ReplyDelete