The scope of section 117 after-care and accommodation

RCJ portrait 146x219The High Court has recently looked again at the scope of s. 117 of the Mental Health Act 1983. Lee Parkhill looks at the decision.

In his judgment in R (Afework) v Camden Mostyn J held that the s. 117 duty is very narrow in respect of the provision of accommodation. 

The High Court considered this issue in in 2011 in the case of R (Mwanza) v Greenwich London Borough Council. In that case Hickinbottom J accepted that the duty is to provide services: (a) that are necessary to meet those needs which arise from the individual’s mental illness and (b) that are necessary to avoid re-admission to hospital for treatment of their mental illness.

As regards the first limb of this test Mostyn J. stressed the need for a connection with the illness which led to hospital detention stating that s. 117 services must “relate to the reason, and only to the reason, for the detention in hospital”.

In the case of Mwanza Hickinbotton J considered the contention, set out by Richard Jones in the Mental Health Act Manual, that ‘ordinary accommodation’ could not fall within s. 117 since the need for ordinary accommodation could not be said to be a need arising from an individual’s mental disorder. Hickinbottom J rejected this in so far as it suggested that, as a matter of law, ordinary accommodation could never fall within the scope of s. 117. However, Hickinbottom J went on to say that the circumstances in which ordinary accommodation would fall within s. 117 were difficult to envisage.

The Court in Afework went further; the Court concluded that there could be no circumstances in which ordinary accommodation would fall within the s. 117 duty. Referring to Hickinbottom J’s difficulty in identifying when ordinary accommodation would fall within s. 117 Mostyn J said:

“I too have racked my brain to think of "circumstances in which a mere roof over the head would, on the facts of a particular case, be necessary to meet a need arising from a person's mental disorder" and I too have drawn a blank. I think the reason that blanks have been drawn by two judges is because in truth there are no such circumstances. Further, I maintain my view that the literal and natural meaning of the words in s117(2), coupled with the legislative policy of the 1948 Act, is that basic or pure or ordinary accommodation does not come within the concept of after-care services…”

Mostyn J went on, at paragraph 19 of the judgment, to set out the test to be applied to determine whether a need for accommodation falls within s. 117 stating:

“I therefore hold that as a matter of law s117(2) is only engaged vis-à-vis accommodation if:

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.”

The issue of compulsion to accept the accommodation was not a point considered in Mwanza. Mostyn J’s conclusion that there must be a degree of compulsion to accept particular accommodation before that service can be said to fall within s. 117 arose from a review of the authorities, including R (Stennett) v Manchester City Council. In Stennett the House of Lords held that local authorities could not charge for s. 117 accommodation. Mostyn J said that the accommodation being considered in Stennett was "an extension of the compulsory detention in hospital…"

The Court’s judgment clearly points to the scope of s. 117 being very limited in respect of accommodation. The rejection of the notion that ordinary accommodation can ever fall within s. 117, together with the stipulation that there must be a degree of compulsion to accept particular accommodation before it can be classed as s. 117 provision, sets a high threshold to be crossed before accommodation will fall within the scope of the duty.

Lee Parkhill i s a barrister at 4-5 Gray’s Inn Square specialising in public law, healthcare and community care. He can be contacted on 0207 404 5252 or by This email address is being protected from spambots. You need JavaScript enabled to view it..