Monday, 2 September 2013

What Is Covered by S.117 Aftercare? Further Recent Case Law

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:
i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition");
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.


  1. My sister is currently under a guardianship order in Scotland.
    She 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

  2. Laura Walker

    My 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.

  3. What about specialist care in your own home for autism? How much will they fund?