Briefing by Luke Clements ~ updated July 2019. This section needs to be expanded. For corrections or suggested additions please contact firstname.lastname@example.org
The duty on health and social care bodies to provide support services under s117 remains and is distinct – ie not covered by the 2014 Act. This means that the assessments to determine eligibility for section 117 aftercare support derive from the duty under the NHS & Community Care Act 1990, section 47(1) and so this section survives the general repeal of pre-SSWB Act legislation. This in turn would appear to means that the eligibility criteria (discussed above) do not apply to such assessments (notwithstanding that Schedule 2 states that section 117 is a social services function).
Under the pre-SSWB Act regime ‘after-care services’ were not defined by the 1983 Act. The English Care Act 2014 however inserted a new subsection (6) into the 1983 Act to limit services to those:
(a) ‘arising from or related to the mental disorder’ and
(b) reducing the risk of a deterioration of the person’s mental condition (ie that may require re-admission).
The amendment applies to both England and Wales.
The Welsh Act (in contrast to the English Act) is silent concerning ordinary residence for the purposes of s117; the right to ‘choice of accommodation’ for persons subject to s117; and the right ‘top-up’ section 117 care and support packages.
In relation to ordinary residence and s117, the position is explained in the Part 11 Code p.32 which states that under s117 local authorities and LHBs:
have a duty to provide mental health aftercare services for people … who are in need of such services. These services must have the purposes of “meeting a need arising from or related to the person’s mental disorder” and “reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.” The range of services which can be provided is broad.
The duty on local authorities to commission or provide mental health aftercare rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the 1983 Act, even if the person becomes resident in another area where they are detained, or on leaving hospital. The responsible local authority may change, if the person is ordinarily resident in another area immediately before a subsequent period of detention which would require section 117 aftercare services.
The English Statutory Guidance (para 19.65) provides the following guidance:
Under section 117 of the 1983 Act … if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.
Many individuals entitled to support under MHA 1983 s117 will also have support needs under the SSWB Act 2014 – ie support needs that are not related to the mental disorder which resulted in their detention for treatment. Since the two Acts take a slightly different approach to ordinary residence, there is the risk the authority responsible for the support needs under the 2014 Act may be different to local authority responsible for the provision of care and support under MHA 1983 s117. This problem is addressed by the 2014 Act s194(4A) which provides that an adult who is being provided with accommodation under MHA 1983 s117 is to be treated for the purposes of the 2014 Act ‘as ordinarily resident in the area of the local authority or the local authority in England, on which the duty to provide the adult with services under that section is imposed’. Although this provision only applies to accommodation, this would appear to all that is needed (due to the deeming rules relating to ‘accommodation’ under the CA 2014 not being replicated by the MHA 1983).
Direct Payments and s117 Mental Health Act 1983
The 2014 Act s53(11) and Sch A1 provide for the making of direct payments to people who are eligible for support under s117. The Care and Support (Direct Payments) (Wales) Regulations 2015 (SI 1815) reg 15 states that there is a duty to make such payments – subject to certain conditions being satisfied.