What Happened
Ms M has a long history of bipolar disorder. She had more recently been diagnosed with dementia.
In the first half of 2020, she had two periods in hospital as her mental health worsened and she had a fall with a bleed on the brain.
Back in 2003 she had been detained under section 3 of the Mental Health Act 1983, triggering entitlement to free s117 aftercare services. She’d been unlawfully charged some £11K but had later been repaid that sum.
In June 2020, the Council assessed her, and concluded that on discharge, Ms M would require a live-in carer. She had lost capacity and now needed help and supervision to stand, move around, take medication, dress, receive personal care, eat and stay safe, whilst believing that she is still independent. It thought that moving into a care home would be severely detrimental to her mental wellbeing given her mental health history, and not in her best interests, and that care at home would be the least restrictive approach.
Until September 2020, Ms M had had her live-in care funded (at £995 a week) through Government Covid-19 hospital discharge funding, but that ceased at that point and ordinary funding liabilities resumed.
After that period, the Council and ICB (Integrated Care Boards) agreed that the live-in care amounted to section 117 aftercare. Their s117 team decided it would only contribute £600 a week. This is because someone decreed that Ms M’s needs ‘could’ be met in a care home specialising in dementia, and £600 per week was the average cost of a room in such a care home, they said.
The Council re-assessed Ms M’s capacity in March and found her to lack capacity to make decisions about her care needs, albeit emphatic she would not go into a care home. The following day, a best interests meeting was held and it was agreed that support from a live-in carer was in her best interests and moving her into a care home would be more restrictive, but that they would still only pay the first £600.
Ms D (Ms M’s daughter) wrote to the Council raising concerns about the necessary payment she was making to cover the shortfall in care costs (£395 per week). In May 2021, the Council replied stating that it was the family’s ‘preference’ to receive care at home for Ms M and that the family had explicitly confirmed that they would be able to fund the difference between the normal care home rates and live-in carer rates for around 2 to 3 years.
Ms D challenged the Council’s response, and she also asked for a CHC assessment.
The Council’s response in July was as follows:
- Ms M was not eligible for CHC funding because she was receiving s.117 aftercare, and her needs would continue to be met under the auspices of s.117 aftercare;
- A view that residential care might in fact meet her needs could not be ruled out;
- It had not ever concluded that her current care provision (live-in carer) is the only provision able to meet Ms M’s needs.
- Her needs should be reviewed regularly and evidence gathered that residential or other options could NOT meet her needs if that was the family’s position; and
- If dissatisfied, she could take her complaint to the Ombudsman.
On 9 July 2021 a s.117 aftercare review was held and Ms M’s and Ms D’s psychiatrists stated that M should continue to receive support at home. The Council reiterated that it would only fund £600 p/wk and Ms M would have to pay a weekly top-up of £395 if there were alternative ways of meeting Ms M’s needs – not alternative appropriate ways of meeting needs.
What was found
The LGSCO found both East Sussex County Council and ICB were at fault causing injustice to Ms M.
The Council and ICB were at fault for failing to pay the full cost of Ms M’s s.117 aftercare at home without:
(i) proper review of Ms M’s needs in line with the law and guidance;
(ii) proper justification (evidence) that her needs could be met elsewhere and/or at a lower cost;
(iii) a documented CPA care plan stating what her aftercare needs are and how these will be met (or an alternative care plan giving a good reason as to why the CPA Process should not be used).
(The Code of Practice under the Mental Health Act 1983 provides that the Care Programme Approach should be used for s.117 care planning, and it is the law that if Guidance or any such Code is departed from, then a justification should be provided).
The ICB and Council failed to support their assertions that Ms M’s needs could be met appropriately in residential care.
For example, there was no evidence of a properly considered and documented best interests decision that placing Ms M in residential care was in her best interests, or that it would meet the statutory aim of reducing readmission under s.117 aftercare. In fact the best interest decision recorded stated that it would be detrimental to her mental health and increase the chances of readmission.
There was also no evidence provided of available care homes that could meet Ms M’s needs, reduce the chances of readmission, and provide the same level of supervision she received at home, for the asserted sufficient sum of £600 per week.
Furthermore, the Council had acknowledged to the LGSCO that one of the reasons Ms M was receiving care at home was because it recognised that her wish to be at home engaged her right to liberty and family life (Articles 5 and 8 of the Human Rights Act, respectively). Given that she lacked capacity as to her health, care and residence (article 8 rights), they had not explained how interfering with these rights (placing her in a home) would be defensibly justified.
The Council and ICB agreed to:
- ensure Ms M’s live-in care charges are free of charge, and continue to be so until and unless a review is carried out which properly concludes that she no longer requires s.117 aftercare.
- any decisions should be properly considered and documented, be in line with the relevant law and guidance; and
- reimburse Ms M’s top-up fees paid to date, with interest, based on the retail price index.
The Ombudsman also found fault with the Council’s operational instructions to staff relating to top-ups, as it was inaccurate – which could cause injustice to others.
The manual relevant to the period of this complaint, combining s117 cases with Care Act cases, provided, “If third party payments cease, ESCC will not be able to support the placement if it is above the maximum amount it has set for that level of care”.
This was incompatible with the Care Act 2014 (CA) and statutory guidance. Under the CA people’s residential care costs are determined by individual personal budgets and not maximum arbitrary rates set by the councils. If third party payments stop, councils must carry out an assessment to check if a cheaper alternative could suitably meet the person’s needs, and consider their well-being. Therefore, sometimes councils MUST continue to support arrangements even if they cost more than what they would usually pay.
East Sussex County Council has updated its manual to address these issues. The Council and ICB have agreed to an action plan to reimburse anyone paying incorrect top-up fees for s.117 aftercare services, and to train staff with the relevant law and guidance applying to s.117 aftercare top-up fees.
Points to note for professionals, councils, people who use services and their carers, advocacy providers and members of the public
The Ombudsman has effectively awarded Ms M restitutionary damages, as East Sussex County Council were unjustly enriched by failing to fully pay for her s.117 aftercare services under the Mental Health Act 1983.
Pursuing a private claim for the restitution of monies allegedly owed by an authority under section 117 of the MHA is perfectly possible if one does not ask for the Ombudsman’s involvement.
When a council provides or arranges actual accommodation as part of a person’s s.117 aftercare, (which does not happen often, other than for older people with dementia – it being more usual to refer to the person to a tenancy in supported living) the person is entitled to their preferred and more expensive accommodation if they wish to spend the money on topping themselves up (or a third party wishes to do so, of course). The LGSCO thought that it was significant that this does not apply to aftercare in a person’s own home under the Mental Health Act 1983, section 117A and The Care and Support and After-care (Choice of Accommodation) Regulations 2014, regulations 2 and 4.) The LGO said this: “There is no provision in the law, statutory guidance or the local agreement for the Council and ICB to meet only part of the cost of this aftercare in a person’s own home and expect Ms M to pay for the rest.”
Unfortunately, this fatally overlooks that there’s no such provision in the law that they CAN do this under the Care Act, and the case law confirms that the discretion is the same: to decide HOW to meet the needs, but only if deciding properly in accordance with public law principles, and against a benchmark of sufficiency in light of all relevant considerations, which would in the Care Act context be wellbeing considerations and the proper identification of needs, eligibility as defined, and an appropriate response that was justified as therapeutically appropriate by a competent professional.
In the Bexley case (London Borough of Bexley 22 002 184), the Ombudsman’s investigator seems to have been persuaded that top ups from individuals themselves, or their relatives are commonplace at home, despite the implications for double charging if the person is assessed on a tariff income basis as well as paying for their own extras in this way. We think that much more legal analysis was required before putting up two flawed reports on this same topic, with all due respect to the organisation.
This difference of approach is not explained or explored by the LGSCO here; the report author may have just been focusing on East Sussex having treated the family as if they had actual legal rights of choice or perhaps that the council had discussed their signing a top up agreement as IF they were operating under the Choice Regulations in this report.
In a report from the same month, Bexley, a top up from the person’s own income was regarded as commonplace, and able to be made without any reference to what it meant was happening to the person’s assessable capital for tariff income purposes. In that scenario, the individual had been held justifiably to have been required to pay a top up of an unspecified amount for remaining at home and having live-in care, in circumstances where it was equally impossible to say what the real comparison was, regarding an appropriate alternative. There, the complaint was not upheld because it was clear that she did not NEED live-in care, and thus that makes good legal sense. But she would have been chargeable, AND spending down her capital on remaining at home, and the location of that sort of a situation within the legal framework was not fully addressed.
Section 117 clients CAN pay for whatever they like on top of home care or care home care or arranged accommodation, regardless, because they are not chargeable for the bottom slice at all. Their cases are not open to any finding of their having deliberately deprived themselves of their own assets (albeit to pay FOR care, rather than avoid paying for care!) and they do not ever need to contend that what was paid out as extra per week, on top of Council charges for what they felt was needed, (albeit not eligibly needed; not merely wanted, however) could thus be Disability Related Expenditure.
Our thinking about this is that nobody would ever dare say that someone’s spending of their own money on themselves, and keeping themselves at home for care was deliberate deprivation of assets, but that neither would a council accept that it was DRE if it was necessary to spend more than the lawful and appropriately sufficient budget, for what was preferred.
We notice that the report emphasised that the Ombudsmen’s remit does not extend to deciding whether an organisation has breached the Human Rights Act, whilst the Ombudsmen DO feel able to make decisions about whether organisations appear to have had due regard to an individual’s human rights in their treatment of them, as part of their consideration of a complaint.
The full Local Government Ombudsman report of East Sussex County Council’s actions can be found here: 21 011 082 – Local Government and Social Care Ombudsman