Ask the AMHP: Yet more ridiculous problems with S.117 Aftercare

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

My postbag continues to receive requests for advice from relatives who are being misled about responsibility for S.117 aftercare. Whether through ignorance, or a desire to save money, I can only guess. The son of an elderly lady wrote to me with this problem.

 My mother was recently discharged from a Psychiatric Hospital in Area A. She has a history of depressive mental illness having been hospitalised at least six times over the years and each time receiving ECT therapy to get better. She was  placed on S.2 MHA and subsequently S.3 MHA, and was given a diagnosis of severe depressive disorder with psychotic symptoms as well as dementia.

I attended her discharge meeting in the hospital and was told she would be subject to S.117. I was told that I should ‘Google it’ to see what it meant when I got home. The doctor at the hospital stated that it would not be a possibility to return home as she would need a substantial care package. As it was Christmas, I decided to take her home to spend Christmas with me. I live in Area B.

While she was with me it became clear that she would need some form of residential care. I contacted the community mental health team in Area A, but was told that she was now in Area B and that I should contact social services in Area B. Following a Care Act assessment conducted by Area B social services, she was placed in a care home near where I live.

I contacted Area A social services regarding help with her care home fees under S.117 to be told that it was nothing to do with them now she was in Area B. However, Area B then told me the responsibility was with Area A.

It appears that because I took my mother home for Christmas she has received no consideration regarding her after-care and I really should have let her go into respite care.

The Masked AMHP replies:

As your mother was detained under S.3 MHA, she will be entitled to free S.117 aftercare. She should also have a Care Act assessment of her needs. The costs of any needs identified should not be chargeable.

I received this reply:

In principal there appears to be agreement that my mother is entitled to S.117 aftercare, the argument now is who is responsible, is it Area A or Area B? My understanding is that when she was taken into hospital her GP was in Area A, she lived in Area A and was hospitalised in Area A, therefore they are responsible despite the fact she is now in a care home in Area B. Area A are apparently seeking legal advice.

The Masked AMHP replied:

This issue is covered by the Care Act 2014.

Sec.39(1) of the Care Act gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” in the case of your mother is “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”.

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:

“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

I'm not sure why Area A is seeking legal advice since it seems quite clear.

If your mother was living in her own home in Area A at the time she was detained under S.3 MHA (or S.2 followed by S.3), then Area A are responsible for S.117 aftercare. The fact that you took her to live with you in Area B is immaterial. It is the "ordinary residence" at the time of admission to hospital. Assuming she has been assessed by the local authority as needing residential care to meet her care needs because of mental disorder, then Area A would be responsible for paying for it.

Here’s another relative with problems around S.117 aftercare:

Hi, wonder if you can advise. My elderly aunt has diagnoses of advanced Parkinson’s/Dementia, Psychosis, Paranoia, Anxiety and Depression. She was detained under s.2 then subsequently discharged to self funded residential care. This placement broke down and she was again detained under S.2, and this was followed by detention under S.3.

Her social worker recommended several possible placements for us to view, to be funded under S.117, that could meet her needs upon discharge and the deal was about to be done when she got Pneumonia and fractured hip and transferred from MH Hospital to regular hospital. This social worker then left their post and we were left to the mercies of the hospital discharge team. 

The CCG said no to S.117 funding as they considered there were no ongoing health needs. They based this on the fact that her MH was now much improved, The new social worker told us they would only provide funding up to their standard maximum, and anything above that would have to be topped up by my aunt.

We reluctantly agreed to this so as not to delay discharge even though the placement was as the original social worker’s recommendation!

We then received a phone call the day before discharge saying that we had to sign the top up agreement that day or she could not be discharged. It was the standard ‘means tested’ top up agreement and we remarked at the time that we were surprised there was not specific paperwork for S.117.

5 months later a newly allocated social worker is saying S.117 funding was never agreed and a financial assessment must take place.

The Masked AMHP replies:

As your relative was detained under S.3 MHA she will be entitled to S.117 aftercare.

Unless there has been a formal meeting with Health and Social Services agreeing that your relative has no needs whatsoever for mental health aftercare, then S.117 responsibilities will continue, which means at the least that there have to be regular review meetings to review her needs. The CCG cannot unilaterally say she has no needs, although they may consider that her needs can be met through social care.

If your relative is in a nursing home, then nursing costs should in any case be met by the CCG.

It is very curious that one social worker identified a placement which presumably reflected her mental health needs, but another social worker is now saying this is not covered by S.117.

Under S.117, all the costs of a care home identified as being the most suitable should be met. A top up would only be required if you and she chose to go to another care home that was more expensive.

Even if the current social worker says no S.117 funding was ever agreed, that does not negate the local authority's duties under S.117. It just means that they have not fulfilled their duties under S.117.

The only complication would be if the care provided was solely arising from physical care needs, but this would be hard to establish, as care homes for elderly people will generally care for a mixture of people with physical and mental frailty.

Even if your relative's other mental health conditions have been successfully treated, she must still be receiving some sort of medication for mental disorder, eg antipsychotic and/or antidepressant medication, which proves an ongoing requirement for mental health aftercare. Also, Parkinson's Disease, which can produce dementia, and any other underlying dementia, are not curable, so she must still have these conditions, which are covered by S.117 aftercare.

I would point these matters out to the current social worker – the bottom line is that as she has at some point been detained under S.3 MHA, she is entitled to S.117 aftercare, whether local authority likes it or not.

If they refuse to budge, then I would make a formal complaint to the local government ombudsman, who has taken a dim view of local authorities trying to dodge their S.117 responsibilities in the past.

I received this reply:

The CCG pretty much said that her needs going forward were social care needs. She currently resides in a residential care home registered for EMI. This is what we told she needed.

As far as we know she is not taking any MH meds. She was taken off them because they were causing complications with her Parkinson's meds and she had a couple of episodes of 'dropping' which they felt was due to the MH meds. On balance, they felt it was the lesser of two evils not to take them.

Thank you for the reassurance that we have not got completely the wrong end of the stick. I shall be making the case that we should not be (and should never have been) paying a top up. We have been truly let down as a family with no mental health follow up being put in place after either of her stays in mental health hospitals and had to beg to have a social worker allocated again when the current placement was looking dodgy a few months ago.

The Masked AMHP replied:

They are clearly accepting that she is entitled to S.117 aftercare, and furthermore she is in an EMI care home. In the circumstances, it is irrelevant what medication she might or might not be taking.

As this is the specific care home identified to meet her needs, they cannot legitimately insist on top-up payments, and S.117 should cover the entire cost.

They're really trying it on!