From Mental Health Law Online
After funding under s117 (top-ups).
Report summary (from report itself)
The complaint was made by a daughter on behalf of her mother who required aftercare under Section 117 of the Mental Health Act 1983 (following compulsory detention for treatment) and became a resident in a care home. There were two main aspects to the complaint:
- The interpretation of the law on the costs of care under Section 117, and in particular: whether the mother could pay, from her own resources, the difference in cost between the rate charged by a home chosen by her family and the rate available in other homes.
- Whether the Council properly took into account the assessed needs of the mother when deciding that a home that could provide care for her at the Council’s usual costs was suitable.
The law and guidance on local authority responsibility for fully funding the costs of aftercare under Section 117 of the Mental Health Act is clear. However, there is no specific statutory provision, case law or guidance on whether someone needing Section 117 after-care and wanting to go into a more expensive home can meet the difference between those costs and the costs that a council would incur for a home that could equally well meet assessed needs.
The Council initially said that only a third party could meet the additional costs of a home chosen by the family for their mother. It then reviewed that decision and concluded that it would be reasonable for the mother to meet the difference in costs from her own resources
A home in the Council’s area had vacancies and the Council said that this home could meet the mother’s needs. The Council therefore refused to pay any more than the amount of that home’s fees. Her care plan included frequent contact with family members. The home that the Council said could meet her needs was in a rural location and difficult for family members to reach.
The Council now accepts that the home chosen by the family is appropriate and it will meet the full costs.
I found that the Council:
- had not properly considered whether the home it had identified would meet the mother’s assessed needs and had not taken into account the impact on family contact;
- had delayed reviewing its initial decision about third party top-ups after representations from the daughter, her M.P. and her solicitors.
If the Council had properly considered the mother’s assessed needs and reviewed its decision about ‘top-up’ payments sooner, unnecessary distress to the complainant would have been avoided. I found that the Council acted with maladministration.
Maladministration and injustice
The Council should pay the complainant £500
LGO website - summaries of adult care services reports
Full report (not available on LGO website)