Legal Frameworks, Common Challenges and Key Judgments Section 117 Aftercare

Current Legal Position and Status of Mental Health Act 2025 Reforms

The Mental Health Act 2025 received Royal Assent on 18 December 2025. Most of its provisions are not yet in force.

The Act will be implemented through phased commencement orders, supported by secondary legislation and a revised statutory Code of Practice. Until specific provisions are formally commenced, the Mental Health Act 1983 continues to apply in its current form, together with existing case law and the current Code of Practice.

This guidance therefore distinguishes clearly between:

• the current legal position, which applies now; and
• future reforms, which will take effect only once commenced and reflected in statutory guidance.

The government has indicated that implementation will take place over an extended transition period (potentially up to 10 years), allowing time for the development of secondary legislation, consultation on the new Code of Practice, and workforce training. The immediate priority is the drafting and consultation of the revised Code of Practice, expected over the next 12–18 months.

Until amendments are formally brought into force, local systems must continue to apply existing law, case law and statutory guidance.

High-level timetable 

Note: Precise commencement dates for specific provisions will be set out in commencement orders and accompanying statutory instruments.

Summary of key changes affecting Section 117 aftercare

What has changed / is now law:

1. Statutory ACD duties: Advance Choice Documents embedded in statute with duties on support and use.
2. Human Rights Act extension: Providers of S117 services are explicitly covered by human rights obligations.
3. Care and Treatment Plans: linked to detention – statutory care planning framework that will integrate with aftercare planning.
4. Stronger patient involvement rights: nominated persons and enhanced participation in aftercare.
5. Ordinary residence policy clarification: placing authority remains responsible for S117 (new statutory approach forthcoming). Implementation expected early.
6. Discharge safeguards: additional consultation duties that strengthen discharge and aftercare planning processes. 

What remains unchanged in principle:

• The statutory basis of S117 aftercare itself
• Non-application of Care Act eligibility and charging
• Legally independent CHC duties remain

The interface between S117 aftercare, Continuing Health Care and Care Act 2014

Distinct legal frameworks – no hierarchy, no substitution

The Care Act 2014 provides the general framework for assessing adult social care needs and determining local authority responsibilities. It is, however, explicitly disapplied in relation to needs that must be met under S117 aftercare. While the practice of assessment and support planning should be integrated, holistic and multidisciplinary, the legal basis, eligibility tests and funding responsibilities for S117 and the Care Act are distinct and must be clearly recorded as such.

S117 aftercare assessment and planning is a joint responsibility between Local Authorities and the NHS/Integrated Care Boards. It requires collaborative, multidisciplinary input to ensure that the full range of mental health, physical health, social care and wider wellbeing needs are identified and met. Local Authority assessment alone cannot address all aftercare needs, including medication, therapeutic interventions and ongoing clinical oversight, which sit within NHS responsibilities.

Key legal principles:

• Care Act eligibility criteria must not be used to determine entitlement to S117 aftercare
• eligibility for S117 aftercare and eligibility under the Care Act are separate determinations; one cannot be used to justify or substitute for the other
• a Care Act needs assessment cannot lawfully replace a Section 117 aftercare assessment or plan
• services provided to meet S117 aftercare needs must not be charged for, regardless of how they are described or commissioned.

In practice, assessment, information-gathering and support planning should be integrated, proportionate and person-centred, reflecting good multidisciplinary practice across health and social care. Practitioners should avoid unnecessary duplication of conversations and processes. However, the S117 eligibility decision, identified aftercare needs, and rationale for provision must be clearly identifiable, to ensure lawful practice, transparency, and joint accountability between Local Authorities and the NHS.

The Care Act may remain relevant procedurally, provided that Care Act eligibility thresholds, outcomes and charging rules are not imported into S117 decision-making. For example, Care Act processes or tools may be used to:

• support holistic information-gathering and strengths-based conversations
• identify and plan for non-S117 needs alongside aftercare
• support continuity and integration within wider care and support planning.

It would not be lawful or good practice to produce a single Care Act assessment that is then simply labelled as a S117 plan, as this risks obscuring the statutory basis of decisions, exposing individuals to inappropriate charging, and undermining joint accountability between health and local authority partners. Clear identification of S117 status and aftercare arrangements within standard systems and documentation is therefore essential, even where practice processes are integrated.

To support consistent and lawful implementation, the S117 Aftercare Implementation Toolkit includes template examples of a jointly developed S117 aftercare assessment and support plan, and a partnership annual review template. These are designed to support integrated, multidisciplinary practice while ensuring that S117–specific duties, decision-making and funding responsibilities are clearly and consistently recorded.

Section 117 and NHS Continuing Healthcare – different tests, different purposes

NHS Continuing Healthcare (CHC) is governed by the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care and applies where an individual is assessed as having a primary health need, determined through the CHC assessment process.

The interaction between S117 aftercare and CHC is complex and frequently misunderstood, and practice has not been consistent nationally. S117 and CHC are distinct statutory schemes with different legal tests and purposes, and eligibility for one does not automatically determine eligibility for the other.

Key principles:

• Eligibility for S117 aftercare does not determine eligibility for CHC, and eligibility for CHC does not remove the duty to provide S117 aftercare
• CHC considers whether a person has a primary health need, based on the nature, intensity, complexity and unpredictability of their needs
• S117 considers whether services are required to:
  • meet needs arising from mental disorder, and
  • reduce the risk of deterioration or readmission

In practice:

• Some individuals entitled to S117 aftercare will also meet the criteria for CHC
• Where CHC eligibility is established, the NHS is responsible for funding the full package of care required to meet the person’s assessed needs
• S117 aftercare must not be used to displace or substitute for NHS responsibilities where needs properly fall to be met under CHC
• Equally, the existence of CHC eligibility does not negate the continuing duty on the ICB and local authority to provide S117 aftercare where qualifying needs remain

CHC eligibility must therefore always be considered on its own merits, even where S117 applies. Automatically routing post-discharge needs through S117 “because the person was detained” risks:

• unlawful transfer of NHS responsibilities to local authorities
• inappropriate joint or split funding arrangements
• failure to apply the CHC primary health need test correctly

While correspondence from the Department of Health and Social Care (May 2023) has sought to clarify the interaction between S117 and CHC, this does not replace statutory guidance, the National CHC Framework, or relevant case law. Local systems should apply the law as it currently stands, ensure that both frameworks are considered appropriately, and avoid using either regime to delay, restrict or deflect responsibility for meeting assessed needs.

This position should be kept under review pending any future revision to the Mental Health Act Code of Practice or the National Framework for NHS Continuing Healthcare.

Lawful sequencing and decision-making

Best practice requires parallel but distinct consideration of all relevant frameworks:

• Confirm S117 entitlement based solely on detention status and discharge
• Identify aftercare needs linked to mental disorder and relapse prevention
• Consider CHC eligibility where needs may be primarily health-based
• Use Care Act processes only for:
  • Needs outside S117
  • Wider wellbeing, prevention and support planning
  • Carer assessments and non-aftercare provision

At no point should:

• Care Act eligibility determine access to S117
• S117 be used to bypass CHC consideration
• Funding responsibility be decided by custom, local protocol or financial convenience

Key legal judgements and established principles

Case law has consistently reinforced these distinctions, establishing that:

• S117 creates a free-standing duty not subject to means testing
• Aftercare must be needs-led, not service-led
• Funding responsibilities must reflect the true legal basis of the need, not administrative arrangements
• Public bodies must not misapply statutory frameworks to avoid cost or shift responsibility.

Failure to correctly distinguish between S117, CHC and the Care Act exposes organisations to:

• Judicial review
• Ombudsman findings of maladministration
• Repayment of unlawfully charged fees
• Reputational and system-wide assurance risk.

Implications for practice and assurance

For practitioners and leaders, this interface is a core assurance issue, not a technical detail. Misapplication disproportionately affects people with complex mental health needs and undermines lawful joint working.

National guidance must therefore be explicit that:

• S117 aftercare planning cannot be reduced to Care Act processes
• CHC consideration is not optional
• Clear recording of the legal basis for each element of care is essential

Getting this right is fundamental to legality, equity, and person-centred practice.

Common myths and corrections: Section 117 aftercare, CHC and the Care Act 2014

The following myths reflect recurring unlawful or incorrect practice. The corrections set out the established legal position.

Section 117 applies equally to children and young people

Section 117 of the Mental Health Act 1983 applies without age limitation. Children and young people who have been detained under qualifying sections of the Act (including section 3 and relevant forensic sections) are entitled to Section 117 aftercare on discharge in exactly the same way as adults.

A persistent misunderstanding in practice is the assumption that:

Section 117 is an “adult provision”, or

• Children’s services legislation displaces Section 117 duties
• Detention under the Mental Health Act, not age, triggers the Section 117 duty.

The statutory duty cannot be replaced by children’s legislation

Children’s social care legislation (including the Children Act 1989 and associated frameworks) provides important and complementary duties in relation to safeguarding, welfare and family support.

However, these duties do not remove or override Section 117 obligations.

Key principles:

• Section 117 aftercare must be explicitly recognised and applied in planning and decision-making for children and young people who are eligible.
• Other statutory plans — including:
  • Child in Need plans
  • Child Protection plans
  • Looked After Children care plans
  • SEND or education plans — may incorporate and reflect Section 117 aftercare but cannot lawfully substitute for it where Section 117 duties apply
• Where Section 117 aftercare needs are met through existing plans, those plans must clearly identify:
  • that the individual is entitled to Section 117 aftercare
  • which needs are being met under Section 117
  • the joint responsibility of the NHS and the local authority
  • that services provided to meet Section 117 aftercare needs are not chargeable, regardless of the child or young person’s status under other legislation.

Failure to clearly recognise and record Section 117 aftercare in children’s cases can result in unlawful reliance on discretionary or time-limited children’s services, rather than the continuing statutory duty imposed by the Mental Health Act.

Identifying Section 117 aftercare needs in children and young people

For children and young people, Section 117 aftercare must focus on needs that:

• arise from the child or young person’s mental disorder, and/or
• are necessary to prevent deterioration or readmission to hospital.

These needs may present differently from adult cases and commonly include:

• psychological and therapeutic interventions
• support with emotional regulation, attachment and trauma
• community mental health support during transition from inpatient care
• support for family and carers where this is integral to maintaining the child’s mental health
• specialist placements or support packages linked to mental health risk.

The test remains the same: whether the service is necessary for mental health aftercare, not whether it fits neatly within children’s social care thresholds.

Joint responsibility and planning for children and young people

As with adults, Section 117 aftercare for children and young people is a joint duty between the NHS (now through the Integrated Care Board) and the local authority.

In practice this requires:

• explicit identification of Section 117 entitlement at discharge
• joint planning between:
  • Children’s mental health services (including CAMHS)
  • Children’s social care
• a clearly recorded Section 117 aftercare plan, even where other statutory plans exist.

The Section 117 plan should:

• be distinct, though aligned, with other children’s plans
• clearly state what is provided under Section 117
• set out review arrangements and responsibilities.

Interaction with Section 17 Children Act 1989

Where a child or young person is identified as entitled to Section 117 aftercare, this should automatically trigger consideration of the need for assessment under Section 17 of the Children Act 1989. Key principles:

• entitlement to Section 117 aftercare is a strong indicator that the child or young person is likely to meet the definition of a “child in need” under Section 17.
• local authorities must not assume that Section 117 displaces or replaces the duty to assess under the Children Act
• a Section 17 assessment may identify:
  • wider welfare needs beyond mental health aftercare
  • family support requirements
  • safeguarding considerations
  • the need for multi-agency intervention.

The legal frameworks are complementary:

• Section 117 creates a joint, non-chargeable aftercare duty focused on needs arising from mental disorder and prevention of readmission.
• Section 17 creates a broader welfare duty to safeguard and promote the child’s wellbeing.

Where both apply:

• the child’s Section 117 aftercare plan and any Child in Need plan should be aligned but clearly distinguished
• documentation must record:
  • the basis for Section 117 entitlement
  • the outcome of consideration (and, where undertaken, completion) of a Section 17 assessment
  • which needs are being met under each statutory framework
  • funding responsibilities and non-chargeability under Section 117.

Failure to consider Section 17 alongside Section 117 risks unlawful omission of children’s social care duties, particularly where needs extend beyond mental health aftercare.

Transitions to adulthood

Transitions from children’s to adult services represent a high-risk point that needs to be managed to ensure lawful practice.

Key principles:

• Section 117 does not end at 18
• the duty continues until it is formally ended by joint agreement
• responsibility transfers from children’s to adult services, but the legal duty remains uninterrupted.

Transition planning must therefore:

• begin early
• explicitly recognise ongoing Section 117 entitlement
• avoid gaps caused by changes in service eligibility or commissioning arrangements.
• Ending Section 117 because a young person reaches adulthood is unlawful.

Common practice risks 

Learning from practice has highlighted the following key practice risks that could be open to legal challenge and impact on outcomes for children and young people: 

• failure to recognise Section 117 entitlement in children detained under the MHA
• treating children’s social care plans as a replacement for Section 117
• time-limiting aftercare based on placement or education arrangements
• applying charging or resource thresholds indirectly through children’s frameworks
• losing Section 117 status during transition to adult services.

Implications for leadership and governance

Local authorities and NHS bodies must ensure that:

• Children’s social care practitioners and managers understand Section 117 duties
• discharge planning pathways explicitly include children and young people
• recording systems clearly identify Section 117 entitlement in children’s cases
• joint dispute resolution arrangements apply equally to children and adults.

Failure to do so exposes public bodies to legal challenge and, more importantly, places children and young people at increased risk of relapse, placement breakdown and readmission.

Common myths and corrections: Children and young people

Legal framework

S117 aftercare must be effective and deliverable in practice, not merely theoretically available.

The statutory duty requires local systems to ensure that agreed aftercare services can realistically be accessed by the individual. Where a service is necessary to prevent deterioration or relapse, the system must consider what is required to make that service accessible.

The same principles of:

• purpose (preventing deterioration/readmission), and
• non-chargeability
  apply to transport where it is necessary to deliver S117 aftercare.

Transport as Part of Aftercare

Transport can form part of S117 aftercare where:

• the aftercare plan includes services or activities that require the person to travel; and
• without transport support, the person would be unable to access those services, undermining the preventative purpose of aftercare.

Examples include access to:

• psychological therapy
• recovery colleges
• structured community or physical activity programmes
• other agreed community-based interventions (for example, gym-based programmes).

Where transport is necessary to enable access to agreed aftercare, transport support should be treated as part of the aftercare package and must be non-chargeable.

Ombudsman Findings on Transport and Deliverability

The Local Government and Social Care Ombudsman has repeatedly emphasised that councils must not:

• agree services in principle without ensuring they are accessible in practice; or
• charge for elements of care that form part of S117 aftercare.

Relevant decisions include:

• LGSCO decision 23 005 802: confirming the lawful use of S117 funding (including direct payments) to support access to community activities forming part of aftercare.
• LGSCO decision 24 001 390: highlighting the need for lawful decision-making and clarity where transport and charging intersect with S117 duties.

These decisions reinforce that failure to consider transport needs can amount to maladministration where it renders agreed aftercare ineffective.

Supporting consistent practice

Local systems should:

• assess transport needs as part of S117 aftercare planning and review.
• include transport support within the aftercare package where it is necessary to enable access to agreed services.
• ensure that transport support provided as part of S117 is non-chargeable.
• avoid commissioning interventions (for example, gym memberships or community programmes) without addressing whether the individual can realistically get there.
• clearly document:
  • why transport support is required
  • how it meets the S117 statutory test
  • how it will be funded or arranged.

Overview

Individuals who are entitled to aftercare under Section 117 of the Mental Health Act 1983 retain this entitlement throughout any period spent in prison, whether on remand, sentenced, or following transfer between custodial settings.

Imprisonment does not end, suspend, or transfer the Section 117 duty. Local authorities and Integrated Care Boards (ICBs) remain jointly responsible for ensuring that the duty is actively managed and discharged throughout the period of custody and on release.

Responsibility and Ordinary Residence

• Fixed responsibility at qualifying discharge: The responsible local authority and ICB are determined at the point of discharge from a qualifying detention (e.g. s.3, s.37, s.47/s.48). Once established, responsibility remains unless and until the duty is lawfully discharged or re-determined following a new qualifying detention.
• Prison is not a place of ordinary residence: A person cannot acquire ordinary residence in prison, as detention is not voluntary. Therefore:
  • Ordinary residence remains that which applied immediately prior to imprisonment
  • placement in a prison in another area does not transfer responsibility
• Prison time as “discounted time”: Time spent in custody is disregarded for the purposes of determining ordinary residence. This means:
  • responsibility always traces back to the pre-custody position
  • prison location, transfers, or movement between establishments do not alter responsibility
• Transfers to hospital (s.47/s.48): Where an individual is transferred from prison to hospital:
  • a subsequent discharge from a qualifying detention will trigger Section 117 duties
  • responsibility must be determined based on ordinary residence immediately prior to that detention
  • this may result in a change of responsible authority and must be explicitly considered and recorded.

Continuation of the Section 117 Duty in Custody

Duty remains in force: The Section 117 duty:

• continues throughout the entire period of imprisonment
• must not be closed, suspended, or reduced solely because the individual is in custody
• remains the responsibility of the originating local authority and ICB.

Delivery of aftercare in custody: While the custodial environment may limit the way in which some community-based aftercare services are provided, the Section 117 duty must continue to be actively managed and discharged, with delivery adapted to the custodial context. Responsible authorities must:

• maintain oversight of the person’s mental health and social care needs
• participate in multi-agency reviews and care planning
• contribute to risk management and relapse prevention planning
• ensure continuity of clinical information and care coordination
• support delivery of appropriate elements of aftercare within custody where feasible

Aftercare in custody should be understood as continuing in a modified form, rather than ceasing.

Role of NHS England (Health and Justice Commissioning)

Healthcare services within prisons are commissioned by NHS England through Health and Justice commissioning arrangements. 

These services:

• are responsible for the provision of healthcare within the custodial setting
• operate alongside, but do not replace, Section 117 responsibilities

Local authorities and ICBs:

• retain full statutory responsibility for Section 117 aftercare
• must work in partnership with NHS England-commissioned providers

Effective delivery of Section 117 in custody requires:

• clear information-sharing
• joint care planning
• defined roles and responsibilities
• early and coordinated release planning.

Prison healthcare providers are key delivery partners but are not the statutory commissioners of Section 117 aftercare.

Review requirements

On entry into custody a review should be undertaken to:

• confirm Section 117 status
• share relevant clinical and social care history
• identify immediate risks and needs.

Ongoing reviews: Responsible authorities must ensure:

• at least annual formal Section 117 reviews
• more frequent reviews where clinically indicated
• active participation by the responsible local authority and ICB (including virtual attendance where required).

Transfer to hospital from prison where a person is transferred to hospital:

• during inpatient admission, treatment is provided under the Mental Health Act rather than as aftercare
• Section 117 aftercare becomes relevant on discharge from a qualifying detention
• responsibility must be re-assessed based on ordinary residence prior to that detention
• clear joint decision-making and recording are essential.

Release planning

Early planning requirement: Release planning must begin at the earliest opportunity and is a core component of discharging the Section 117 duty.

Minimum requirements prior to release. Responsible authorities must ensure:

• suitable accommodation or interim housing arrangements
• access to medication and clinical support on release
• handover to community mental health services
• benefits and income reinstatement
• coordination with probation, resettlement services, and MAPPA where applicable
• clear relapse prevention and risk management plans.

Short-notice release. Where release occurs unexpectedly:

• emergency arrangements must be implemented
• urgent follow-up and support must be secured.

Working with other agencies

Prison healthcare providers (NHSE-commissioned):

• deliver healthcare within custody
• contribute to care planning, reviews, and release preparation
• share relevant information regarding risk and clinical need.

Probation, resettlement services, and MAPPA. Section 117 aftercare must align with:

• probation supervision requirements
• resettlement plans
• MAPPA risk management frameworks.

Responsible authorities must participate in relevant multi-agency forums and ensure lawful information-sharing.

Ending Section 117 in custody

Section 117 can only be ended where:

the local authority and ICB jointly agree that aftercare is no longer required, and

ending the duty will not place the individual at risk of deterioration or readmission
Section 117 must not be ended solely on the basis of stability within the structured prison environment.

People returning to a different area after release. Where an individual chooses to live in a different area:

• the originating local authority and ICB remain responsible
• services may be delivered in the new area through:
  • cross-boundary arrangements
  • commissioning agreements
  • reimbursement mechanisms.

Dispute resolution

• care must continue during any dispute
• local resolution processes should be followed
• unresolved disputes should be escalated to national processes (DHSC/NHS England).

Summary

Section 117 aftercare remains a continuous statutory duty that is not extinguished or transferred by imprisonment.

Responsibility is determined by ordinary residence immediately prior to the qualifying detention and is not affected by custodial location, prison transfers, or sentencing status.

During custody, the duty must continue to be actively managed and discharged through oversight, care coordination, multi-agency working, and release planning, with delivery adapted to the custodial context and undertaken in partnership with NHS England-commissioned prison healthcare services.

Where a new qualifying detention occurs following transfer to hospital, responsibility must be re-determined in accordance with ordinary residence rules, and this must be clearly recorded to ensure lawful decision-making and continuity of care.

While the legal framework establishes important principles in relation to accommodation funding under Section 117, this remains an area that requires careful consideration and consistent application to ensure lawful and equitable practice.

When can accommodation fall within Section 117: Accommodation is not automatically an aftercare service. The courts have drawn a clear distinction between:

• the provision of ordinary housing (which does not fall within s117); and
• accommodation provided as part of a package of aftercare services addressing needs arising from mental disorder and aimed at preventing relapse.

The question is therefore functional and purposive: Is the accommodation being provided because it is necessary to meet needs arising from the mental disorder and to reduce the risk of deterioration or readmission?

If so, it may fall within s117. If the need is solely a general housing need, unrelated to the person’s mental disorder or the prevention of relapse, it does not.

The “Accommodation-Plus” description: In practice, this distinction has often been described as the “accommodation-plus” principle. This is not a statutory test and does not appear in the MHA. It is shorthand used in professional guidance to describe the approach derived from case law.

“Accommodation-plus” reflects the requirement that accommodation must be more than the mere provision of a roof over someone’s head. It must:

• be required because of needs arising from the person’s mental disorder; and
• form part of the aftercare package intended to reduce the risk of deterioration and readmission.

Examples may include supported accommodation, placements with therapeutic input, or accommodation with structured supervision where those elements are necessary to manage relapse risk linked to the mental disorder.

Key legal principle: The determinative issue is not the label attached to the accommodation, but whether, on proper analysis, it:

• addresses needs arising from or related to the mental disorder; and
• is provided for the purpose of reducing the risk of deterioration and hospital readmission.

Only where both limbs are satisfied does accommodation fall within the scope of s117.

Housing Benefit 

Where accommodation forms part of a person’s S117 aftercare package, it should be provided on a non-chargeable basis, in line with the statutory principles underpinning S117.

The Local Government and Social Care Ombudsman have, in a number of cases, identified fault where individuals have been advised to claim Housing Benefit to cover accommodation costs that should properly have been met as part of S117 aftercare. Such approaches risk inappropriate charging and maladministration and should be avoided.

Local systems should ensure that decisions about accommodation funding clearly distinguish between:

• accommodation that is required to meet S117 aftercare needs; and
• accommodation costs that fall outside the scope of S117 and may appropriately be met through Housing Benefit or other routes.

Clear recording and communication with individuals is essential to ensure transparency and lawful application of funding responsibilities.

S117 aftercare is not a "public fund" for the purposes of immigration rules and therefore a person's immigration status, including having an NRPF condition, does not disqualify them from entitlement to S117 aftercare.

If a person meets the eligibility criteria (i.e., they have been detained under a qualifying section of the MHA and require aftercare services to manage their mental health needs), the duty to provide that aftercare applies regardless of their immigration status. Local authorities and ICBs must not refuse to assess or provide S117 services on the basis of a person having NRPF.

Legal context and statutory position

Section 17 of the Mental Health Act 1983 enables a person detained in hospital to be granted leave of absence, allowing them to live in the community either full-time or for part of the week, while remaining formally detained.

Statutory guidance confirms that S117 aftercare can apply to people on section 17 leave and is not limited to the point of final discharge. This reflects Parliament’s intention that aftercare should support safe transitions, reduce relapse, and prevent unnecessary readmission, including during phased or conditional moves out of hospital.

The Mental Health Act Code of Practice states:

“The section 117 duty includes people granted leave of absence under section 17 and people going on community treatment orders (CTOs).”

This means that entitlement to, and funding of, aftercare does not depend on whether the person has been formally discharged, but on whether the statutory test for aftercare is met.

Practical implications for funding and discharge planning

In practice, section 17 leave is frequently used to:

• test accommodation or support arrangements
• enable step-down from inpatient care
• maintain clinical oversight while increasing independence
• reduce the risk of relapse or readmission.

Where services are required to support a person living in the community during section 17 leave — including accommodation, care, or therapeutic support — and those services meet the statutory test, they can lawfully be funded under S117.  This is particularly relevant where:

• the person is spending most or all of their time in the community
• the placement or support is integral to relapse prevention
• withdrawal of funding would create a foreseeable risk of deterioration

Local systems should be cautious about approaches that treat S117 aftercare as a late-stage consideration. Experience shows that this can contribute to delayed discharges, disputes between partners and avoidable risk.

Managing system tensions and avoiding common errors

This area is recognised as a recurring source of dispute between ICBs and local authorities. To support lawful and proportionate practice:

• Section 17 leave should not be used to defer or avoid S117 funding decisions where the statutory test is met.
• conversely, S117 should not be applied automatically to all section 17 leave - short, escorted or therapeutic leave alone will not usually engage the duty.
• decisions must be clearly recorded, setting out:
  • the nature of the leave,
  • whether the person is living in the community, and
  • how the services provided meet (or do not meet) the S117 test.

Where there is uncertainty, the presumption should be in favour of maintaining continuity of care and avoiding cliff-edges, with disputes resolved through agreed joint governance processes rather than delaying support.

Key practice message

Section 17 leave and S117 aftercare are complementary legal tools, not competing regimes. Used properly, they allow systems to:

• test and stabilise care packages safely
• maintain clinical control while promoting recovery
• reduce readmission risk
• avoid artificial funding cut-offs

Section 17 Leave and the Mental Health Act 2025 – Current Position

As at the date of publication, Section 17 of the Mental Health Act 1983 (leave of absence) has not been substantively amended or commenced by the Mental Health Act 2025.

Section 17 therefore continues to operate as previously, including its established interaction with S117 aftercare, as reflected in statute, case law and the current Code of Practice.

While the Mental Health Act 2025 introduces wide-ranging reforms to detention, care planning and patient rights, any future changes affecting Section 17 will be brought into force through commencement orders and reflected in the revised Code of Practice.  Until such changes take effect, systems should continue to apply Section 17 and S117 in accordance with existing law and guidance.