This chapter sets out the considerations that must be made when a hospital in-patient with NRPF has no accommodation to be discharged to when their treatment ends. Such cases present the hospital with a challenging, and possibly expensive, situation to manage when bed spaces are in high demand. Local authorities can be required to reimburse the NHS where a delay in assessing and/or meeting care and support needs leads to ‘bed-blocking’, and may face considerable costs if accommodation needs to be provided to meet care and support needs under the Care Act 2014. It is essential that patients with NRPF are identified as soon as possible after admission, and that health professionals and social services practitioners work closely to establish how this will impact on the treatment plan and discharge options.
6.1 Discharge procedure
Section 74 and Schedule 3 of the Care Act 2014, the Care and Support (Discharge of Hospital Patients) Regulations 2014, and Annex G of the Statutory Guidance, set out the process that must be followed to transfer care from a hospital to local authority where the hospital believes that there is a reasonable prospect that a person may have care and support needs.
The Care Act requires a hospital to give notice to the local authority when it is not likely to be safe to discharge the patient unless arrangements for meeting the patient’s needs for care and support are in place. Annex 6(5) of the Statutory Guidance states:
‘The NHS is required to issue a notice to the local authority where they consider that an NHS hospital patient in receipt of acute care may need care and support as part of supporting a transfer from an acute setting regardless of whether they intend to claim reimbursement. The relevant local authority who the NHS must notify is the one in which the patient is ordinarily resident or, if it is not possible to determine ordinary residence, the local authority area in which the hospital is situated.’
Once the assessment and discharge notices have been issued by the hospital in accordance with the regulations, the local authority must undertake a needs assessment and make arrangements for meeting eligible needs before the discharge date or two days after the assessment notice was received, whichever date is later.
Where the local authority determines that a patient has eligible care and support needs, or considers using a discretionary power to provide accommodation, then for patients who are in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, it will also need to undertake a human rights assessment to determine whether support is required to prevent a breach of the person’s human rights or EU treaty rights.
For further information about responsibility for meeting needs, see section:
6.2 TB treatment
Local authorities have no duty under the Care Act 2014 to provide accommodation when this is needed solely to manage a public health risk. When a patient requires a course of tuberculosis (TB) treatment and is contagious, but has NRPF so cannot access mainstream housing services, an agreement regarding sourcing and funding accommodation may need to be made with the local Clinical Commissioning Group (CCG). Failure to have an agreement in place may give rise to costs to the NHS due to bed-blocking or people being lost to follow up treatment, as well as a drain on resources where a business case has to be made each time such a situation arises to access funding for accommodation.
Examples of such arrangements and practical information can be found in Public Health England’s guidance, Tackling tuberculosis in under-served populations, including:
- Checklist to help accommodate TB patients with no recourse to public funds developed by the London TB Control Board, NRPF Network and others
- Service level agreement between a hospital and London Borough of Hackney’s housing department to accommodate homeless TB patients with NRPF
- CCG risk share arrangement in London to fund housing for TB patients with NRPF
6.3 Section 117 mental health aftercare
Section 117 of the Mental Health Act 1983 imposes a duty on the local NHS Clinical Commissioning Group (CCG) and local authority social services department, to provide or arrange for aftercare services to patients who have been compulsorily detained under the Mental Health Act when they cease to be detained and leave hospital following admission under:
- Section 3 (detained in hospital for treatment)
- A hospital order made under sections 37 or 45A (ordered to go to hospital by a court)
- Sections 47 or 48 (transferred from prison to hospital)
Aftercare services are provided once the patient has left hospital, whether this is immediately or sometime after they have been discharged under the above provisions of the Mental Health Act. Aftercare can include the provision of accommodation in certain circumstances, so it is very important that the CCG and local authority properly consider whether this can be provided when a person with NRPF’s detention is due to end.
Aftercare services must be provided free of charge and are not subject to any immigration exclusions, so nationality and immigration status are not factors that affect whether a person can receive aftercare under section 117.
The Department of Health’s Code of Practice: Mental Health Act 1983 must be followed for people with NRPF.
The duty to provide aftercare services exists until both the CCG and the local authority are satisfied that the patient is no longer in need of such services, so a joint decision must be made. When preparing to discharge a person from section 117 support, regard should be given to their immigration status and entitlement to public funds, as a referral to social services may be appropriate for a needs assessment under the Care Act 2014, and in some cases, a human rights assessment.
6.3.1 Responsibility for providing aftercare
Responsibility for the provision of section 117 aftercare mirrors the position regarding responsibility for providing care and support under the Care Act 2014.
Section 75(3) of the Care Act stipulates that the local authority responsible for providing aftercare will be that in which the patient was ordinarily resident (if in England or Wales) immediately before they were detained/hospitalised or where they are discharged to if they have no previous or current place of ordinary residence. This is summarised in the Statutory Guidance at paragraphs 19.64-66:
‘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.’
‘If, however, a patient is not ordinarily resident in England or Wales immediately before being detained, the local authority responsible for commissioning the patient’s after-care will be the one for the area in which the patient is resident. Only if that cannot be established, either, will the responsible local authority be the one for the area to which the patient is sent on discharge. However, local authorities should only determine that a person is not resident anywhere as a last resort.’
6.3.2 Providing accommodation under section 117
Section 117(6) of the Mental Health Act 1983 defines aftercare:
‘In this section, “after-care services”, in relation to a person, means services which have both of the following purposes—
- 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).’
This clarifies that aftercare services must meet a need arising from or related to the person’s mental disorder with the purpose of reducing the risk of deterioration in the condition and therefore reduce the risk of readmission to hospital for treatment for the disorder.
CCGs and local authorities are given broad discretion as to what services they provide, and the Code of Practice provides examples of what services aftercare can encompass at paragraph 33.4:
‘CCGs and local authorities should interpret the definition of after-care services broadly. For example, after-care can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.’
Aftercare can include the provision of accommodation, if that is required for the purpose of meeting a need arising directly from or related to the patient’s mental disorder and will help to reduce the risk of their mental condition deteriorating. This therefore suggests that ordinary accommodation (e.g. a private tenancy) cannot be provided. Aftercare may also include subsistence payments when a person with NRPF is accommodated under section 117 and has no alternative means of obtaining financial support.
6.3.3 Referring for a Care Act assessment
It may be appropriate to refer a person, who is eligible for or receiving aftercare, for a needs assessment under the Care Act 2014 in the following circumstances:
- When they may require additional care and support outside of what can be provided under section 117
- When the CCG and local authority have determined that accommodation cannot be provided under section 117
- Where supported accommodation under section 117 has been provided but their progress means that their need for such at type of housing no longer exists and the CCG and local authority have jointly discharged the person from such aftercare support
A needs assessment must be carried out under section 9 of the Care Act in accordance with standard practice, but if the person is in a group excluded by Schedule 3 of the Nationality Immigration and Asylum Act 2002, then a human rights assessment will also be required to establish whether care and support should be provided to prevent a breach of the person’s human rights or rights under the EU treaties. The local authority can exercise its power under section 19(3) of the Care Act to meet urgent needs whilst these assessments are undertaken.
For more information, see sections: