If someone is under s117 and living in the community can they usually claim HB?

Yes, as long as their accommodation isn't being provided under section 117 and all the other conditions of entitlement are met.

Thanks, that's what I thought. Accommodation can be provided under s 117 but isn't usually in the community I don't think. However MIND are advising people not to sign tenancies are they can get accommodation under s 117. Also apparently Nat Assoc of Adult Placement Providers are advising similar but I haven't seen this yet and am waiting to hear from them

I've seen the MIND advice too, and although I'm inclined to agree with Nevip, I can think of some circumstances in supported housing where the the answer is far from clear.

The argument goes that a person under a s117 shouldn't be charged for any of the services provided in their aftercare package. Services can also include accommodation, if specific accommodation is required for the other named services to be delivered. Usually in such circumstances this will be residential or nursing care, but not always.

As Nevip rightly says, no mention of accommodation in the package should give you a clear run at HB. Liability for the claimant to pay rent is crucial. The ex-patient can only be liable if accommodation is not mentioned in the package.

Where I think it gets a bit murky is with supported housing schemes where the support is not 'floating support'. Most tenancy agreements will make receipt of the support package a condition of tenancy. If the property and the services are legally bound in this way, they seem to me to be inseperable.

It could be argued by a Housing Department that the responsible health or social services authority should pay for both, as the services named in the s117 package are only avaiable via residency at that specific property. Could a person not requiring the services in question reside in the scheme? More often than not there will be a referral protocol and strict eligibility criteria, so I'd say no. Perhaps this is what MIND were thinking?

I'd certainly be interested in seeing the Adult Placement guidance if you could share it when it becomes available...

Thanks Fred. I will share the advice when I get it

Just a couple of observations.

For my own knowledge, it would be much appreciated if someone could confirm whether the provision of accommodation in s.117 cases is in fact a legal duty of Social Services? If so, would that not make it irrelevant as to whether or not such accommodation is expressly mentioned in the package?

The next observation, although not directly in response to the original post, may nevertheless be of interest. This relates to HB being available in "supported" accommodation; with particular regard to the privately rented sector. It's important to note that no assumption should be made as to whether HB will cover all of the rent - even in so-called "exempt accommdation" cases. There are many issues relating to such cases that have been, and continue to be, the subject of heated debate and argument. Several CDs have now been issued and several more are awaited. As things currently stand, the amount of HB being awarded in "exempt accommodation" cases has become something of a postal lottery. It should also be noted that this issue is now affecting cases where RSLs are the landlord. (For transparency: I continue to assist LAs in such cases to varying degrees).

Hi Kevin

The LA Social Services department, the relevant PCT and the Health Authority have a duty under s117 of the Mental Health Act 1983 to provide after care services to a patient detained under s3 of the Act. After care services are not defined in the Act but are a matter for the relevant Authority to assess on the basis of individual need. So a service assessed as needed will be in the individual’s care plan.

Regards
Paul

Kevin is absolutely right about the spread of the Sheffield decision and other associated judgements - many RSLs locally are finding resistence from HB authorities to the extent that schemes are not being commissioned and contingency plans are being discussed. To this extent the supported housing option for s117 dischargees may in future cease to be as attractive (in pure financial terms) as it has been previously.

To my knowledge, the point Kevin raises about a duty to house resting with Social Services is a grey area. A number of possible scenarios seem to exist, from healthcare which can only be delivered in a specific property operated by a health authority on one extreme, to floating support delivered in the person's own home on the other.

Where supported housing is identified for a person, it isn't clear whether or not Social Services can simply play a role as facilitators in finding appropriate accommodatio, and thereby avoid the financial responsibility to pay. There may not be anything to legally prevent this at the moment, but it seems to be an area crying out for case law, particularly if the services in the scheme are inseperable from the accommodation and bound into the tenancy agreement.

It seems inescapable that decisions on whether or not there can be access to HB for those under s117 will need to be judged on a case by case basis, and that the best starting point should usually be the written aftercare plan. Where accommodation is included, the expatient shouldn't be charged and therefore cannot be liable to pay rent. No rental liability means no HB. Like Kevin, I'd very much like to see some authority on how far Social Service departments' involvement should extend...

Fred stated:
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"Where supported housing is identified for a person, it isn't clear whether or not Social Services can simply play a role as facilitators in finding appropriate accommodatio, and thereby avoid the financial responsibility to pay. There may not be anything to legally prevent this at the moment, but it seems to be an area crying out for case law, particularly if the services in the scheme are inseperable from the accommodation and bound into the tenancy agreement."
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I've tentatively assumed the above was in the context of Social Services responsibilities, rather than HB. However, just in case, and for completeness, this may be of interest.

In terms of, specifically, HB and the definition of "exempt accommodation", care or support or supervision (CSS) must be provided by, or on behalf of, the accommodation provider. In CH/3900/2005, it was found that where a party (e.g. Social Services) instructs, arranges or facilitates privately rented accommodation through a third party, those actions do not have the effect of making (Social Services) the accommodation provider. In plain English, "accommodation provider" means the landlord.

Regards

Info from MIND: -

http://www.mind.org.uk/Information/Legal/s117.htm

Kevin: Do you have a copy or a link to CH/3900/2005? A quick google search drew a blank. If so, I'd be grateful if you could share it. My email address, if you have the decision, is: fred.grand@durham.gov.uk

Your summary of the decision sort of covers the point I had in mind, but I was thinking of things more from the HB perspective. If Social Services become (by their involvement) the accommodation provider, this may well be an issue as far as exemption goes, but it wouldn't necessarily prevent a claim to HB if the accommodation is not a service referred to in the aftercare plan.

The issue I had in mind was related but slightly different: does a s117 aftercare plan which omits reference to accommodation but nevertheless directs the dischargee towards CSS services that can only be received by signing a tenancy agreement mean that the accommodation is in reality part of the same package?

This seems to bring this thread full circle, and the link Nevip posted asks (but doesn't really answer) similar questions about the legality of this type of tenancy.

Thanks.

I've forwarded a copy of CH/3900/2005 to Rightsnet. All things being equal, it should be posted relatively shortly.

www.rightsnet.org.uk/pdfs/CH39002005.doc

Thanks. Some suitably gloomy reading for Christmas, I hope...!!

Fred