There is clarity on funding, roles, and responsibilities
Objective
To provide practical guidance on local agreements for funding arrangements and clearly delineate the roles of local authority and Integrated Care Board partners in aftercare delivery.
Why is this important?
A clear framework for funding Section 117 aftercare plans is a significant enabler to the effective delivery of lawful aftercare.
Disagreements can arise not only about how funding should be apportioned between a local authority and an Integrated Care Board, but also about which local authority or ICB is legally responsible for the person’s aftercare, including in cross-boundary situations. This may occur, for example, where a person has been placed out of area, has moved between areas, or where there is uncertainty about ordinary residence.
Such disputes, whether about funding shares or about which “patch” is responsible, must not result in delay, interruption or withdrawal of aftercare. Section 117 is a joint statutory duty and a legal entitlement. Responsibility for identifying the correct authority and resolving disputes rests with the statutory bodies, not with the person.
Where there is uncertainty or disagreement about responsibility, interim arrangements must be put in place to ensure continuity of aftercare pending resolution. People must not experience gaps in support while organisations determine liability.
In accordance with Section 117(3) of the Mental Health Act 1983, any dispute between an Integrated Care Board and a local authority as to their respective responsibilities must not affect the provision of aftercare services to the person concerned.
Clear local agreements and escalation routes are therefore essential to prevent avoidable delay, unlawful cost-shunting, and distress to people and their families.
What does good look like?
- Joint responsibility: The duty to provide or arrange Section 117 aftercare is a joint one, shared between the Integrated Care Board and the local authority, with both equally responsible for funding and delivering the agreed aftercare services and support required to meet peoples’ needs.
- No arbitrary divisions: The aftercare package is based on the individual's assessed needs, and the funding is agreed jointly between the ICB and the local authority. There are no arbitrary divisions of responsibility for example based on the type of service or the individual's diagnosis.
- Clear and transparent agreements: Local agreements on funding arrangements are clear, transparent, and publicly available
- Focus on needs and outcomes, not budgets: Local agreements on funding arrangements are clear, transparent, and publicly available
Practical considerations
Funding protocol: Is there a jointly agreed funding protocol that clearly sets out local arrangements for funding Section 117 aftercare, including respective responsibilities, use of interim or “without prejudice” funding arrangements, and a clear, time-bound process for resolving any funding disputes?
- The protocol should be consistent with relevant national guidance for determining commissioning responsibility, including NHS England’s Who Pays? guidance for the NHS element of Section 117 aftercare and the statutory framework for determining ordinary residence for local authority responsibilities.
- Funding arrangements must ensure that disagreements about apportionment do not delay the provision of aftercare to the person.
Training on legal frameworks: Are staff involved in the commissioning and delivery of aftercare receiving regular training on the legal frameworks for Section 117, Continuing Health Care and the Care Act to improve legal literacy and reduce the risk of legal challenge?
Dispute resolution: Is there a clear, timely and jointly agreed dispute resolution process in place to address any disagreements about funding or responsibilities for Section 117 aftercare? This should include defined escalation routes between the Local Authority and the Integrated Care Board, access to senior decision-makers, and regular joint escalation or oversight meetings to resolve issues promptly and prevent delays to aftercare.
Charging: Are there systems in place to ensure that policies and procedures are compliant with the law and that people are not being illegally charged for any care associated with their Section 117 aftercare.