8.3 Prisons, Approved Premises and Bail Accommodation

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, responsibilities for meeting the needs of prisoners were not always clear, and this led to confusion between local authorities, prisons and other organisations, and made it difficult to ensure people’s eligible needs were met. The Care Act 2014 clarifies local responsibilities for people in custody with care and support needs.

Prisoners often have complex health and care needs and experience poorer health and mental health outcomes than the general population. Research has found higher rates of mental illness, substance misuse and learning disabilities among people in custody than in the general population. Access to good, joined up health and care support services is, therefore, particularly important for these groups.

All adults in custody, as well as offenders in the community, should expect the same level of care and support as the rest of the population. This is crucial to ensure that those in the criminal justice system who are 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.

2. Role of the Local Authority

Adults in a custodial setting should be treated as if they are ordinarily resident in the local authority area where the custodial setting is located (see Ordinary Residence chapter). Adults who are bailed to a particular address in criminal proceedings are treated as ordinarily resident in the local authority area where they are required to reside as part of their bail conditions.

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 they came from at the start of their detention or where they will be released to. If an adult is transferred to another custodial establishment in a different local authority area, responsibility will transfer to the new area. The prison or approved premises to which an adult is allocated is decided by the Ministry of Justice.

Prisoners, especially those serving long sentences, may develop eligible needs over the course of their prison sentence. Local authorities have a duty to provide information and advice on what can be done to prevent or delay the development of such care and support needs. Access to the internet may be limited in prisons and other custodial settings, so it is important to consider the most appropriate format for information and advice to be provided, such as easy read leaflets.

Although not all local authority areas contain prisons or approved premises, all areas will be responsible for ensuring continuity of care for adults with eligible needs who are released into their area with a package of care. Similarly local authorities must support continuity of care for any of their residents moving into custody.

Where prisoners have previously been detained in hospital under sections 47 and 48 of the Mental Health Act 1983 and then transferred back to prison, their right to receive section 117 aftercare should be dealt with in the same way as it would be in the community, apart from any provisions which do not apply in custodial settings, such as direct payments and choice of accommodation.

Section 117(3), as amended by the Care Act 2014, should be used to determine which local authority is responsible for commissioning or providing section 117 aftercare services (see Section 117 Aftercare chapter).

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 chapter). 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. However, the Supreme Court in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31, stated that the section 117 duty will end, for example, if the person concern “were to die or was deported or imprisoned”.

3. Definitions

Prison: Reference to prison includes young offender institutions (which hold young people aged 15-21), secure training centres or secure children’s homes. 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: These are premises which are 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.

His Majesty’s Prison and Probation Service (HMPPS): is an executive agency, sponsored by the Ministry of Justice. The agency is made up of HM Prison Service, Probation Service and Youth Custody Service.

Within England and Wales, HMPPS are responsible for:

• running prison and probation services;
• rehabilitation services for people leaving prison;
• ensuring the availability of support to stop people reoffending;
• contract managing private sector prisons and services such as:
  • the prisoner escort service;
  • electronic tagging.

Through HM Prison Service they manage public sector prisons and contracts for private prisons in England and Wales. The Probation Service oversees delivery of probation services in England and Wales.

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

HM Inspectorate of Prisons / Probation: HM Inspectorate of Prisons for England and Wales (HMI Prisons) is an independent body 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 body reporting 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.

4. Information Sharing

See also Information Sharing chapter

Local authorities are responsible for the security of information held on people who are in custodial settings. They should develop agreements with partner agencies in line with policies and procedures of Ministry of Justice and HMPPS, which enable appropriate information sharing on individuals, including the sharing of information about risk to the prisoner and others where this is relevant. See also Information Sharing Policy Framework (gov.uk).

If a local authority is providing care and support to an adult who is remanded (awaiting trial), sentenced to custody, bailed to an approved premises, or required to live in approved premises as part of a community sentence, the most recent assessment and care and support plan should be shared with the custodial setting and the local authority in which it is based (if different), so that care and support may continue.

Prisons and / or prison health services should inform their local authority when someone they believe has care and support needs arrives at their establishment (see Integration, Cooperation and Partnerships chapter). The local authority may also receive requests for information from managers of custodial settings or the probation service when an adult who has already received care and support in the community is remanded or sentenced to custody. The information requested should be provided as soon as possible.

The local authority and partners in the criminal justice system should put in place  processes for identifying people in custodial settings who are likely to have or to develop care and support needs. This could include when the adult is screened on arrival at the prison or  during health assessments.

5. Assessments of Need

When the  local authority is informed 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 same standards and approach to assessment and decision-making about whether someone has care and support needs (see Assessments chapter) should apply to those in custodial settings as those not in the criminal justice system, bearing in mind that an adult in prison will no longer have the same level 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 the most efficient way for all 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 organisation, for example prisoners’ health assessments.

Adults in a custodial setting also have a right to self-refer for an assessment. 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.

5.1 Eligibility

The threshold for the provision of care and support does not change in custodial settings, and will be the same as set out in the Eligibility chapter. When an adult  is in a custodial setting, this should not in any way affect the assessment and recording of their eligible needs. However, 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 during the care planning process when agreeing how to best meet the adult’s care and support needs. The extent and nature of their needs should be identified before taking into account the environment in which they live. If a safeguarding issue is identified, the prison or approved premises management should be notified in line with HM Prison and Probation policy on adult safeguarding.

5.2 Information

See also Resettlement and Care for Older Ex-Offenders and Prisoners (recoop) Information Leaflets and Posters

See also Information and Advice chapter

For any of the adult’s needs that are not eligible, the local authority must provide information and advice  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 adult’s consent, as this will help them manage their needs.

Prisoners, especially those serving long sentences, may develop eligible needs over the course of their prison sentence. Local authorities have a duty to provide information and advice on what can be done to prevent or delay the development of care and support needs (see Preventing, Delaying or Reducing Needs chapter). Low level preventative support and information and advice can help adults in custody maintain their own health and wellbeing.

5.3 Choice of accommodation

The right to a choice of accommodation does not apply to those in a custodial setting except when an adult is preparing for release or resettlement in the community.

It is important that, where appropriate, adults in custodial settings are supported to maintain links with their families, as long as this is in the best interests of the adult and there are no public protection requirements or safeguarding children concerns which may prohibit family or other personal contact. While it may not always be possible or appropriate to involve family members directly in assessment or care planning, the adult should be asked whether they would like to involve others in these processes.

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

6. Carers Assessments

Prisoners, residents of approved premises or staff in prisons or approved premises should not 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.

7. Charging and Assessing Financial Resources

As in the community, adults in custodial settings will be subject to a financial assessment to decide how much they may pay towards the cost of their care and support (see Charging and Financial Assessment chapter).  Where it is unlikely the adult will be required to contribute towards the cost of their care and support, ‘light touch’ financial assessments can be carried out. If the adult does not meet the eligibility threshold for local authority support but wants to purchase care services, this request should be referred for decision to HM Prison and Probation Service.

8. After the 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 for care and support, a care and support plan must be prepared. The adult should be involved this process. The local authority should also involve others concerned with the adult’s health and wellbeing, including prison staff, probation offender managers, staff of approved premises and health care staff, to ensure integration of care as well as what is possible withing  the custodial regime. Any safeguarding issues should be addressed in the care and support plan (see also Section 14, Safeguarding Adults).

While every effort should be made to put adults in control of their care and for them to be actively involved and able to influence the planning process (see Support Planning chapter), it should be explained 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 adult’s ability to exercise choice and control is limited in this way, this should be discussed with them and recorded as part of the care planning process. However, the plan must contain the different elements outlined in the Support Planning chapter, including the allocated personal budget. This will ensure that the adult is clear about the needs to be met, the cost of meeting those needs and how, if applicable, being in custody means their choice and control is limited.

The local authority should seek consent from the adult so that their care plan can be shared with other providers of custodial and resettlement services including custodial services, the probation service, prison healthcare providers and managers of approved premises as relevant. For residents of approved premises, the local authority should always liaise with the responsible offender manager in probation services.

8.1 Equipment and adaptations

If an adult needs equipment or adaptations to meet their care and support needs, this should be discussed with the prison, approved premises and health care service partners to identify which agency is responsible for providing them. 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, it may be the local authority that is responsible. Aids for adults are the responsibility of the local authority, whilst more significant adaptations would the responsibility of the custodial establishment. See Adult Social Care Prison Service Instruction).

Care and support plans for those in custodial settings are reviewed in the same way   as all other plans (see Review of Support Plans chapter). The local authority should also review the adult’s care and support plan each time they go into custody from the community, or are released from custody.

9. Direct Payments

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

Adults living in bail accommodation or approved premises who have not yet been convicted are entitled to direct payments, as they would have been whilst in their own homes (see Direct Payments).

10. Continuity of Care and Support when an Adult Moves

Adults in custody with care and support needs must have continuity of care if they are moved to another custodial setting or when they are being released from prison and moving back in to the community (see Continuity of Care). Adults in custody cannot be said to be ordinarily resident there because the concept of ordinary residence is based on the person living there voluntarily. This means they might be ordinarily resident where they previously resided. However, it is the local authority where the custodial setting is situated which is responsible for assessments and services, while the adult is in custody. When an adult is being released from prison, their ordinary residence will generally be in the local authority area 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 decided by the Ministry of Justice, and adults can 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. 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 adult’’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 adult, should work together to ensure that the adult’s care and support 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 (see Continuity of Care), including the adult’s care and support plan.

The second authority should assess the individual before they are moved, but this may not always be possible (for example if it was 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, until it has carried out its own assessment.

11. People Leaving Prison: Ordinary Residence

The Care Act states 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. However, this does not apply to people leaving prison.

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

However, deciding an adult’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 adult to return to their prior local authority area due to the history of their case and any risks associated with them returning to that area.

In situations where an adult 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 their needs assessment.

Given the difficulties associated with deciding 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 workable in the local authority area where the adult will live.

12. End of Life Care

See also End of Life Care chapter

The provision of care and support for those in custodial settings also applies to those who reach the end of their life whilst in prison. Some adults will transfer to a local hospital, hospice or care home or move to an alternative prison for palliative care. In these cases, responsibility for care and support will pass to the NHS or new local authority, once the adult arrives at the new location. Approved premises are not usually 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 their condition deteriorates significantly. The adult’s consent to share such information 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 and consider the legal basis for sharing information (see Data Protection Act 2018 chapter).

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 their end of life care.

13. NHS Continuing Healthcare

See also Continuing Healthcare (NHS)

NHS Continuing Healthcare (CHC) is care which is arranged and funded by the NHS and provided to adults who have been assessed as having a ‘primary health need’. It 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.

14. Safeguarding Adults at Risk of Abuse or Neglect

See Adult Safeguarding chapter

Local authority staff and staff working in custodial settings must understand what to do where they have a concern about abuse and / or neglect of an adult in custody. Prison and probation staff may approach the local authority for advice and assistance with adult safeguarding concerns, but the local authority does not have the legal duty to lead safeguarding enquiries in any custodial setting.

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

Local authorities should have processes to identify 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 who are approaching their eighteenth birthday. These young people should receive a transition assessment when appropriate (see Transition to Adult Care and Support).

This also applies where a young person moves from a  young offender institution to an adult prison, which may change which e local authority responsible for them. 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.

16. Care Leavers

If a young person is entitled to care and 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 advisor (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 otherwise 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.

18. Complaints

Anyone who is unhappy with a decision made by the local authority can make a complaint about that decision. The local authority should provide information to the adults’ custodial settings on how the adult can complain about the provision of their care and support services (see Complaints).

19. Investigations and Inquests

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 cooperate with any investigations as required.

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 if they have relevant information.

20. Further Reading

20.1 Relevant chapters

Ordinary Residence

Assessment

20.2 Relevant information

Chapter 17, Prison, Approved Premises and Bail Accommodation, Care and Support Statutory Guidance (Department of Health and Social Care)