12.8 Prisons, Approved Premises and Bail Accommodation (TSSP)

1. Introduction

People in custody or custodial settings who have needs for care and support should be able to access the care they need, just like anyone else. In the past, the responsibilities for meeting the needs of prisoners have been unclear, and this has led to confusion between local authorities, prisons and other organisations. This created difficulties in ensuring people’s eligible needs are met.

Prisoners can often have complex health and care needs and experience poorer health and mental health outcomes than the general population. Evidence demonstrates higher prevalence among the adult prison population of mental illness, substance misuse and learning disabilities than in the general population. Access to good integrated health and care support will be particularly important for these groups. The Care Act 2014 sets out to clarify local responsibilities and describe how the partners involved should work together.

People bailed to a particular address in criminal proceedings are, like those in prison or approved premises, treated as ordinarily resident in the local authority where they are required to reside.

Adults detained or residing in a custodial setting are treated as if they were ordinarily resident in the area where the custodial setting is located.

This chapter relates only to custodial settings in England.

Where prisoners have previously been detained under sections 47 and 48 of the Mental Health Act 1983 and transferred back to prison, their entitlement to section 117 aftercare should be dealt with in the same way as it would be in the community, apart from any provisions which are disapplied in custodial settings, such as direct payments and choice of accommodation, which are set out in more detail below.

Section 117(3), as amended by the Care Act 2014, will apply in determining which local authority is responsible for commissioning or providing the section 117 aftercare.

If the person was ordinarily resident in the area of a local authority immediately before being detained in hospital, that local authority will be responsible for the aftercare while the person is in prison and upon their release from prison (see Ordinary Residence). However, if the person was not ordinarily resident in any area immediately before detention, the local authority responsible will be where the person is resident or where they have been discharged (that is, the local authority responsible for the prison to which the person has been discharged). The local authority will be jointly responsible for aftercare with NHS England while the person is in prison.

All adults in custody, as well as offenders and defendants in the community, should expect the same level of care and support as the rest of the population. This is crucial in ensuring that those in need of care and support achieve the outcomes that matter to them, and that will support them to live as independently as possible at the end of their detention. In addition to ensuring that individual needs are met, this will contribute to the effectiveness of rehabilitation and improve community safety.

Local authorities are responsible for the assessment of all adults who are in custody in their area and who appear to be in need of care and support, regardless of which area the individual came from or where they will be released to. If an individual is transferred to another custodial establishment in a different local authority area this responsibility will transfer to the new area. The prison or approved premises to which an individual is allocated is a matter for the Ministry of Justice.

Local authorities should also be aware that prisoners, especially those serving long sentences, may develop eligible needs over time whilst in prison. Local authorities should consider how best to provide information and advice to both individuals and establishments on what can be done to prevent or delay the development of care and support needs. In doing so it is important to consider the level of access to electronic media and the most appropriate format, such as easy read leaflets, of information and advice in custodial settings, and the custodial environment in which the care and support is to be provided.

Not all local authority areas contain prisons or approved premises. Those that do will assume responsibility for the eligible needs of the people residing in these sites. However, all local authorities will be responsible for continuity of care for offenders with a package of care coming into their area on release from prison. Provision of care and support, where an adult has eligible needs, should be provided once these individuals move into the community. Early engagement in the resettlement plan of the local authority in the area to which the person is returning will reduce delays, particularly when resettlement is in a new area due to the nature of the original offence. Similarly local authorities must support continuity of care for any of their residents moving into custody (see Integration, Cooperation and Partnerships).

Local authorities, provider organisations and their staff working in custodial settings should abide by all rules and practices for that establishment, including (but not restricted to) security policies such as restricted items and searches on entry, equality and safeguarding procedures.

2. Definitions

Prison: A reference to a prison includes a reference to a young offender institutions (which hold young people aged 15-21), secure training centre or secure children’s home. A reference to a governor, director or controller of a prison includes a reference to the governor, director or controller of a young offender institution, to the governor, director or monitor of a secure training centre and to the manager of a secure children’s home. A reference to a prison officer or prisoner custody officer includes a reference to a prison officer or prisoner custody officer as a young offender institution, to an officer or custody officer at a secure training centre and to a member of staff at a secure children’s home.

Approved premises: Premises approved as accommodation under the Offender Management Act 2007 for the supervision and rehabilitation of offenders, and for people on bail. They are usually supervised hostel type accommodation.

HM Prison and Probation Service (HMPPS): An executive agency of the Ministry of Justice, its role is to commission and provide offender services in the community and in custody in England and Wales, ensuring best value for money from public resources. HMPPS works to protect the public and reduce reoffending by delivering the punishment and orders of the courts and supporting rehabilitation by helping offenders to change their lives.

Probation Service: The probation service is responsible for working with adult offenders both in the community and during the transition from prison to the community to reduce reoffending and improve rehabilitation.

HM Inspectorate of Prisons / Probation: HM Inspectorate of Prisons for England and Wales (HMI Prisons) is an independent inspectorate which reports on conditions for and treatment of those in prison, young offender institutions and immigration detention facilities. HM Inspectorate of Probation for England and Wales is an independent inspectorate on the effectiveness of work with adults, children and young people who have offended aimed at reducing reoffending and protecting the public.

Prisons and Probation Ombudsman (PPO): The Prisons and Probation Ombudsman investigates complaints from prisoners, those on probation and those held in immigration removal centres. The Ombudsman also investigates all deaths that occur among prisoners, immigration detainees and the residents of approved premises.

3. Information Sharing

See also Information Sharing and Confidentiality.

Local Authorities should ensure the security of information held on people who are in custodial settings, and should develop agreements consistent with policies and procedures of Ministry of Justice and HM Prison and Probation Service which enable appropriate information sharing on individuals, including the sharing of information about risk to the prisoner and others where this is relevant.

If a local authority is providing care and support for a person in the community and that person is subsequently remanded or sentenced to custody, or bailed to an approved premises, or required to live in approved premises as part of a community sentence, the local authority should share details of the most recent assessment and care and support plan with the relevant custodial setting and the local authority in which it is based so that care and support may continue.

It is unlikely that a local authority will know when an individual is remanded or sentenced to custody in a new local authority area. Prisons and /or prison health services should inform the local authority when someone they believe has care and support needs arrives at their establishment (see Integration, Cooperation and Partnerships). The local authority may also receive requests for information from managers of custodial settings or the probation service when an individual who has already received care and support in the community is remanded or sentenced to custody. It should take all reasonable steps to provide the information requested as soon as practicable after receiving the request.

4. Assessments of Need

Where a local authority is made aware that an adult in a custodial setting may have care and support needs, they must carry out an assessment as they would for someone in the community. The standards and approach to assessment and determination of need should apply to individuals within custodial settings, bearing in mind that an adult with care and support needs will no longer have the benefit of support they may have relied upon in the community. It is likely that there will be complexities for carrying out assessments in custodial settings and consideration should be given to how such assessments will be carried out in an efficient way for all involved (for example making appointments and consideration of the number and type of staff required to be involved).

The local authority may also combine a needs assessment with any other assessment it is carrying out, or it may carry out assessments jointly with, or on behalf of another body, for example prisoners’ health assessments.

The local authority should consider processes for identifying people in custodial settings who are likely to have or to develop care and support needs. Reception screening and health assessments are key opportunities to establish whether an individual has been receiving care and support before entering custody. Existing processes such as interviews for court purposes conducted by the probation service could be used to obtain information about current social care needs. This information follows the individual into the custodial setting and can be used to enable appropriate links to local authorities. This also applies to people with low level needs who are being supported in the community by local authority community services. Sharing this information will enable continuity of care in the custodial setting.

Local authorities should aim to conduct assessments of those who appear to have care and support needs promptly following receipt of the referral from managers of custodial settings or the prison’s health providers. People in a custodial setting have a right to self-refer for an assessment and local authorities should work with the managers of the custodial setting to consider how to facilitate and respond to self-referrals. The local authority should provide appropriate types of care and support prior to completion of the assessment where it is clear the person has urgent needs.

If someone in a custodial setting refuses a needs assessment the local authority is not required to carry out the assessment, subject to the same conditions as in the community; therefore it does not apply if:

• the person lacks the capacity to refuse and the local authority believes that the assessment will be in their best interests; or
• the person is experiencing, or is at risk of, abuse or neglect (see Introduction, What is Safeguarding and Why does it Matter?).

Once a local authority has assessed an individual in custody as needing care and support it must determine if some or all of these needs meet the eligibility criteria.

Where an individual does not meet the eligibility criteria, the local authority must give him or her written information about:

• what can be done to meet or reduce needs and what services are available; and
• what can be done to prevent or delay the development of needs for care and support in the future.

4.1 Eligibility

The threshold for the provision of care and support does not change in custodial settings. When an individual is in a custodial setting, this should not in any way affect the assessment and recording of eligible needs. Whilst the setting in which the care and support will be provided is likely to be different from community or other settings, and this should be taken into account when considering how to meet the need for care and support as part of the care planning process, the extent and nature of need should be identified before taking into account the environment in which the individual lives. This is particularly important when individuals move between prisons and / or from prison into the community. Services which support the best outcomes which can be achieved should be provided where the built environment necessarily limits the type or quality of care and support which can be provided. If a safeguarding issue is identified then the prison or approved premises management needs to be notified in accordance with HMPPS policy on adult safeguarding.

4.2 Information

See also Information and Advice.

For any needs that are not eligible, the local authority must provide information and advice to the individual on how those needs can be met, and how they can be prevented from getting worse. It is good practice to copy this information to managers of custodial settings, with the person’s consent as this may be relevant to how the individual is managed in the custodial setting.

Prisoners, especially those serving long sentences, may develop eligible needs over time. The local authority should consider how best to provide information and advice to both individuals and establishments on what can be done to prevent or delay the development of care and support needs (see Preventing, Delaying or Reducing Needs). In doing so it is important to consider the prison regime and the environment, as well as the individual’s capacity to understand the information that is being provided. Individuals in custodial settings, like people in the community, may benefit from low level preventative support and information and advice that will help them maintain their own health and wellbeing.

4.3 Choice of accommodation

The right to a choice of accommodation does not apply to those in a custodial setting except when an individual is preparing for release or resettlement in the community. Release into an approved premises amounts to moving from one custodial setting to another.

It is important that, where appropriate, individuals in custodial settings, maintain links with their families, subject to consideration of the best interests of the individual and to public protection requirements which may limit family contact. While it may not always be possible or appropriate to involve family members directly in assessment or care planning, individuals should be asked whether they would like to involve others in their assessment or care planning.

If it is not possible to involve families directly, the local authority should ask the individual concerned whether they would like others to be informed that an assessment is taking place, the outcome of that assessment and whether they should see the care and support plan.

5. Carers Assessments

It is not the intention that any prisoner, resident of approved premises or staff in prisons or approved premises should take on the role of carer as defined by the Care Act and should therefore not in general be entitled to a carer’s assessment.

6. Charging and Assessing Financial Resources

Those in custodial settings will be subject to a financial assessment to determine how much they may pay towards the cost of their care and support, as they would be in the community. Consideration should be given to the best way of handling financial assessments, taking into account the resources required. In particular local authorities should consider how ‘light touch’ assessments could be carried out where a person is unlikely to be required to contribute towards the cost of their care and support. As indicated previously, a high proportion of the prison population have a mental health problem or learning disability and they may have a poor understanding of their personal finances. Therefore forms and questions must be accessible and support provided to enable the individual to complete the financial assessment. Should the person not meet the eligibility threshold for local authority support, but they wish to purchase care services, this request should be referred for decision to HMPPS

7. Next Steps after Assessment

The local authority should ensure that all relevant partners are involved in care and support planning and take part in joint planning with health partners.

Where a local authority is required to meet needs it must prepare a care and support plan for the person concerned and involve the individual to decide how to have their needs met. The local authority should also speak to others concerned with the person’s health and wellbeing, including prison staff, probation Offender Managers, staff of approved premises and health care staff, to ensure integration of care, and fit with the custodial regime as appropriate, including enabling access to regime services such as libraries and education. Any safeguarding issues are to be addressed in the care and support plan.

Whilst every effort should be made to put people in control of their care and for them to be actively involved and influential throughout the planning process, the local authority should make it clear to individuals that the custodial regime may limit the range of care options available, and some, such as direct payments, do not apply in a custodial setting. Where an individual’s ability to exercise choice and control is limited by the custodial regime, this should be discussed with the individual and recorded as part of the care planning process. However, the plan must contain the elements as outlined in Chapter 10 Care and Support Planning, Care and Support Statutory Guidance (2016), including the allocated personal budget. This will ensure that the person is clear about the needs to be met, the cost attributed to meeting those needs and how, if applicable, the custodial regime limited the individual’s choice and control.

The local authority should aim to ensure that consent is given so that individual care plans are shared with other providers of custodial and resettlement services including custodial services, the probation service, prison healthcare providers and managers of approved premises. For residents of approved premises, the local authority should always liaise with the responsible Offender Manager in probation services.

7.1 Equipment and adaptations

For those assessed as being in need of equipment or adaptations to their living accommodation to meet their needs, the local authority should discuss with its prisons, approved premises and health care services partners where responsibility lies. Where this relates to fixtures and fittings (for instance a grab rail or a ramp), it will usually be for the prison to deliver this. But for specialised and moveable items such as beds and hoists, then it may be the local authority that is responsible. Aids for individuals are the responsibility of the local authority, whilst more significant adaptations would the responsibility of the custodial establishment.

The local authority may commission or arrange for others to provide care and support services, or delegate the function to another party. It should consider how this fits alongside the commissioning of health and substance misuse services in prison directly commissioned by NHS England and the commissioning of education services by the Education and Skills Funding Agency. If such an arrangement is implemented, local authorities should consider retaining the functions relating to requirements for continuity of care between settings and must retain the functions in relation to charging and safeguarding. The local authority should make sure that any other party commissioned to provide care and support is aware of the policies and procedures to be followed when working in a custodial environment.

Care and support plans for those in custodial settings will be subject to the same review processes as all other plans. The local authority should also review an individual’s care and support plan each time they enter custody from the community, or are released from custody.

People in custody may experience episodes of hospital care, for example following an incident such as a stroke. The local authority should cooperate with hospital staff and prison health service providers and commissioners to prevent delays in discharge from hospital and support a timely return to custody.

8. Direct Payments

Direct payments do not apply in prisons and approved premises, and may not be made to people in custodial settings.

Individuals in bail accommodation and approved premises who have not yet been convicted are entitled to direct payments, as they would have been whilst in their own homes.

9. Continuity of Care and Support when an Adult Moves

Individuals in custody with care and support needs must have continuity of care where they are moved to another custodial setting or where they are being released from prison and are moving back in to the community. Individuals in custody cannot be said to be ordinarily resident there because the concept of ordinary residence relies on the person voluntarily living there and those in custody have not chosen to live there. As such, they might remain ordinarily resident where they previously resided. It is the local authority where the custodial setting is situated which is responsible for assessments, services and so on, in relation to an individual in custody. Where the adult is being released from prison, their ordinary residence will generally be in the authority where they intend to live on a permanent basis (see Section 10, People Leaving Prison: Ordinary Residence).

There will be circumstances where the process to ensure continuity of care will need to differ, for example when a prisoner is moved between establishments or when they are released in another area because of the nature of their offence. The prison or approved premises to which an individual is allocated is a matter for the Ministry of Justice, and individuals may be moved between different custodial settings. In such cases, the Governor of the prison or a representative, should inform the local authority in which the prison is located (the first authority) that the adult is to be moved or is being released to a new area as soon as practicable. If this is a move to a custodial setting or release into the community in the same authority, then the first authority will remain responsible for meeting the individual’s care and support needs. Where the new custodial setting or the community, if being released, is in a different local authority area (second authority), the first authority must inform the second authority of the move once it has been told by the prison.

The prison, both local authorities and where practicable, the individual, should work together to ensure that the adult’s care is continued during the move. It is good practice for the first and second local authority (and the transferring and receiving prisons where appropriate) to have a named member of staff to lead on arrangements for individuals during the transfer. Both local authorities must share relevant information, including their care and support plan.

The second authority should assess the individual before they are moved, but this may not always be possible as the authority could be informed of the transfer at short notice. In such circumstances the second authority must continue to meet the care and support needs that the first authority was meeting. It must continue to meet these needs until it has carried out its own assessment.

All prisons in England and Wales will be designated as either resettlement or non-resettlement prisons. Due to the nature of resettlement prisons, it is likely that they will experience a high turnover of prisoners and it is particularly important that the care needs of those serving short term sentences are identified and responded to.

10. People Leaving Prison: Ordinary Residence

The provisions in the Care Act, which provide that in most circumstances a person’s ordinary residence is retained where they have their needs met in certain types of accommodation in another local authority area, do not apply to people who are leaving prison.

Therefore, where a person requires a specified type of accommodation (see Ordinary Residence) to be arranged to meet their eligible needs on release from prison, the local authority should start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence.

However, determining an offender’s ordinary residence on release from prison will not always be straightforward and each case must be considered on an individual basis. For example, it may not be possible for an offender to return to their prior local authority area due to the history of their case and any risks associated with a return to that area.

In situations where an offender is likely to have needs for care and support services on release from prison or approved premises and their place of ordinary residence is unclear and / or they express an intention to settle in a new local authority area, the local authority to which they plan to move should take responsibility for carrying out the needs assessment.

Given the difficulties associated with determining some offenders’ ordinary residence on release, prisons or approved premises, the probation service and the local authority providing care and support should initiate joint planning for release in advance. Early involvement of all agencies, particularly the probation service, should ensure that the resettlement plan is sustainable in the local authority area where the individual will reside. Prisons and the probation service should support assessment and care and support planning for those offenders who will require care and support services on their release from prison.

11. Partnerships and Interdependencies

It is essential that local arrangements for the delivery of care and support are made in partnership with health and education commissioners and providers within a custodial environment, as well as the the probation service so that those with eligible needs experience integrated services. This should take account of the need for close working with prison staff and regime service (see Integration, Cooperation and Partnership).

Consideration should be given to the duty to promote integration. This includes health and health related services provided by prisons and the probation service. In support of this, the local authority should consider the value of regular inter-agency meetings with all those involved in the person’s care and support.

The local authority should ensure that contracts with providers of care and support cover staff supervision and that staff are supported to deliver high quality services in custodial settings. As part of its responsibilities for shaping and facilitating the market in care and support services, the local authority should work with prisons and approved premises to develop and test contingency plans to cover the event of provider failure. These plans should be aligned with wider prison and local authority business continuity and contingency planning (see Market Shaping and Commissioning of Adult Care and Support).

12. End of Life Care

See also End of Life Care.

The provision of care and support for those in custodial settings extends to those who reach the end of life whilst in prison. For this provision of palliative care, some will transfer to a local hospital, hospice or care home or move to an alternative prison where a more suitable environment is available. In these cases, responsibility for care and support will pass to the NHS or new local authority, once the individual arrives at the new location. Approved premises are not in general a suitable location for the provision of end of life care.

Prison managers and health care providers should consider informing local authorities when a prisoner receives a terminal diagnosis or when the condition of such a patient deteriorates significantly. Information could be shared with local authorities for the purpose of offender management. The individual’s consent should be obtained where possible.

Where it is not possible to obtain consent to share the information, managers of custodial settings and health care providers should make an individual assessment of the nature of the information and the requirements of the Data Protection Act 2018.

Local authorities should work with the prison healthcare provider to ensure that the care and support needs of the prisoner are met throughout the provision of end of life care.

13. NHS Continuing Healthcare

NHS Continuing Healthcare is a package of ongoing care that is arranged and funded solely by the health service for individuals outside a hospital setting who have ongoing healthcare needs of a type and quantity that they have been found to have a ‘primary health need’. Such care is provided to people aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. NHS Continuing Healthcare is not dependent on a person’s condition or diagnosis, but is based on their specific care needs.

The Care Act sets out the limits on what a local authority may provide by way of healthcare and so, in effect, sets the boundary between the responsibilities of local authorities for the provision of care and support, and those of the NHS for the provision of health care. In order to support joint working, it is important that all partners involved are clear about their own responsibilities, and how this sits together (see Integration, Cooperation and Partnerships). NHS England is responsible for commissioning healthcare for prisoners, where necessary this includes NHS continuing healthcare.

14. Safeguarding Adults at Risk of Abuse or Neglect

See Stage 3: Planning Discussion or Meeting.

Local authority and care provider staff must understand what to do where they have a concern about abuse and neglect of an adult in custody. The prison must ensure that it has clear safeguarding policies and procedures that are explained to all visiting staff. Prison and probation staff may approach the local authority for advice and assistance in individual cases although the local authority will not have the legal duty to lead enquiries in any custodial setting.

The local authority should consider inviting prison and probation staff to be members of the local Safeguarding Adults Board. The inclusion of prison and probation staff on Safeguarding Adults Boards should be agreed with all statutory board members. The Safeguarding Adults Board can act as a forum for members to exchange advice and expertise to assist prison and probation staff in ensuring that all people in custodial settings are safeguarded.

15. Transition from Children’s to Adult Care and Support

The local authority should be aware of young people in young offender institutions, secure children’s homes, secure training centres or other places of detention as well as young people in the youth justice system, who are likely to have eligible needs for care and support as adults, and are approaching their eighteenth birthday. Local authorities should ensure that appropriate arrangements are in place to identify these young people and ensure they receive a transition assessment when appropriate (see Preparing for Adulthood Policy).

This also applies where an offender moves from the youth custodial estate to the adult custodial estate, which may include a change in the responsible local authority. A request for an assessment can be made on the young person’s behalf by the professional responsible for their care in the young offenders’ institution, secure children’s home or secure training centre. Good communication between professionals, institutions and local authorities is essential to prepare for transfer and ensure a smooth transition.

16. Care Leavers

If a young person is entitled to support and services as a care leaver, this status remains unchanged while in custody and the local authority that looked after the young person retains responsibility for providing leaving care services during their time in custody and on release.

Local authorities have a duty to provide Personal Adviser (PA) support to all care leavers up to age 25, if they want this support.

Good communication is essential between the local authority responsible for leaving care services and the local authority responsible for providing care and support in custody.

17. Independent Advocacy Support

Adults in custody are entitled to the support of an independent advocate during needs assessments and care and support planning and reviews of plans if they would have significant difficulty in being involved in the process. It is the local authority’s duty to arrange an independent advocate, as they would for an individual in the community (see Independent Advocacy).

The local authority should agree with managers of custodial establishments how the advocacy scheme will work in their establishments. Local arrangements for peers or prison officers to provide advocacy support or signpost people in custody have a role, however this does not fulfil the requirement for independent advocacy support.

18. Complaints and Appeals

The local authority should provide information to those in custodial settings on how to make complaints, and seek redress about provision of care and support services.

Managers of custodial settings should inform the local authority where an offender wishes to make a complaint as soon as they are made aware. A prisoner may choose to complain or appeal by alternative methods, such as by letter or telephone to the care and support provider. This correspondence should be processed in the same way as all other appeals and complaints once received by the local authority.

Anyone who is dissatisfied with a decision made by the local authority is able to make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints.

19. Standards and Assessments

The Prisons and Probation Ombudsman (PPO) conducts investigations in prisons following complaints about prison services, as well as deaths in custody or other significant events. The PPO will commission a relevant body to assist their investigations where it is felt that an aspect of care and support provision has contributed to the event. The local authority should co- operate with any investigations as required.

The party commissioned by the PPO will investigate any relevant aspect of care and support provision and report back to the PPO for inclusion in the final report.

Both prisons and probation services are inspected by HM Inspectorate of Prisons and HM Inspectorate of Probation. The local authority should make any relevant assessments and other documents available to inspecting bodies as part of the investigation.

The local authority will receive copies of all investigation reports that are relevant to it. It is good practice for the local authority to contribute to the responses and action plans in conjunction with HMPPS, prison managers and health care providers and commissioners. This could include work to prevent and reduce re-offending, and to prevent harm to others or to the offender.

The local authority should cooperate with and attend any inquests that are held following a death in custody, where it is requested to do so or they have relevant information.