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posted 1 Jan 2000 in Volume 5 Issue 2
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Charging for Section 117
Mental Health Aftercare Services
The September/October 1999 issue of this journal
included an article on charging for section 117 services under the Mental Health
Act 1983, and gave details of an important High Court decision R v London
Borough of Richmond ex parte Watson and related cases.
This article focuses on section 117 and the R v London Borough of
Richmond ex parte Watson and related decions 1but this time gives details of a very
recent report by the Local Government Ombudsman into an Investigation into
Complaint No 98/B/0341 against Wiltshire County Council 14 December 1999. The
Ombudsman found maladministration for wrongly charging a woman for her care in a
residential home following a period of detention in hospital under section 3
Mental Health Act 1983. He recommended the council to reimburse the £60,000 so
far paid.
The Facts of the Case
The investigation of this case started
in April 1998. The complainant's sister who had a history of mental illness and
had previously been detained under section 3 Mental Health Act 1983 was placed
in residential care under guardianship in 1995 2. Once her property was sold in May
1996, her brother was required to refund the authority the amount that had been
paid and continue to pay the full cost on behalf of his sister. However, in
March 1996, the Council had obtained Counsel's opinion that charges for section
117 were not lawful. The brother was not aware of this, or indeed that there
were any questions about charging for section 117 services.
In 1997 the brother wrote to Age
Concern on another matter, and it was suggested that he should take up the
question of his sister's charges with the authority as it appeared she might be
receiving section 117 services. In November 1997 it was considered by a senior
officer of the Social Services Department that section 117 still applied as
there was ongoing specialist mental health involvement. However Wiltshire
continued to charge for section 117 services in view of the fact that there had
been no Department of Health Guidance or decided caselaw, although the policy
was put under review.
In February 1998 the matter was reported to the Social Services
Committee advising the authority to cease charges from 1 April 1998. It was not
proposed to reimburse any client contributions already received. The Social
Services Committee did not accept the recommendation, but wanted to seek further
clarification from the Department of Health. The response from the Department on
the 15 April was:
'In our view charges cannot be levied for services, residential or
non-residential, which are provided as part of the programme of after-care under
section 117. The question of what is to be included in the after-care plan under
section 117 is a matter for consideration by the Health and Social Services
Authorities at the Care Planning Meeting.'
The authority changed its policy on
charging for section 117 services on 16 April 1998 with effect from 1 April
1998, ceasing charges to existing users and making no charges to new service
users.
On 30
March 1998 a letter was sent to the complainant saying that his sister's section
117 aftercare had been ended in July 1996 when she became self-funding. Her
brother had not been involved in any decision at the time and he argued that his
sister's mental health has not altered.
The Findings
The Ombudsman found
maladministration on three points:
 |
It was known by the Council in March 1996 that charges for section 117 service did not appear to be a lawful policy, but the matter was not reported to Members until February 1998. There was a further delay until April 1998 when the policy was changed. The Ombudsman could see no reason why, with reasonable diligence, the policy could not have been changed some two years earlier than in fact it was. Because of the nature of charges for residential accommodation (which in this case amounted to some £60,000 over the period) reasonable diligence was required to ensure that payments were not made for services that should be free of charge. |
| |
When the Council eventually decided to change its policy, it gave inadequate consideration to reimbursing charges already borne by those subject to section 117 after-care services. There was no reason given for not reimbursing such people and the Council had fettered its discretion to consider applications for reimbursement, taking into account individual circumstances. |
| |
The Council had concluded retrospectively that the resident had not been subject to section 117 since she had become self-funding in July 1996. This decision was not made in accordance with the Code of Practice 3., and the Ombudsman could see no scope for retrospective judgements to change a patient's status in default of consultation and review. In addition it contradicted the views expressed in November 1997 that services continued to be provided under section 117. In the absence of a proper review conducted in accordance with the Code of Practice the resident, in the Ombudsman's view, has continued to receive services under section 117 of the Mental Health Act. |
The Recommendations
The Ombudsman recommended that the complainant's sister should be reimbursed all money paid since May 1995. The Ombudsman also stated that she remain under section 117 until such time as a proper assessment concludes (should it be possible to do so) that her care is no longer provided under section 117. However because it seems likely that ex p Watson, and the other cases previously referred to, will go to the Court of Appeal the Ombudsman has made a proviso. If the Court of Appeal finds that charges are lawful, then the complainant's sister should be reimbursed to April 1996 - when the Council could have made the changes which it in fact made in April 1998 - until it changes its policy again. The Ombudsman further urged the Council to consider the case of other people who have had to pay for these services and treat them in a similar way.
The Implications of This Investigation for Advisers
Following the High Court judgement, this investigation raises some very interesting angles for advisers. The investigation found that information was held that it was unlawful to charge under section 117, but no action was taken for over two years to change the local authority's policy. It is estimated by the authorities involved in the High Court case that approximately 50% of authorities still charge. Anecdotal evidence indicates that even since this case some authorities are still charging as they await guidance from the Department of Health (which to date has not been forthcoming) or the decision of the Court of Appeal. This Ombudsman's case could be helpful when raising questions about current charges as clearly all authorities will be aware of the judgement. It also shows how useful such investigations can be in establishing what knowledge is held within an authority and whether due processes have been followed.
This case shows how important it is for advisers working with people with mental health problems to be alert for cases where it is possible the person could be under section 117 but are being charged for such services. It also raises the importance of whether section 117 has been lifted and if so when, whether the proper procedures were followed, and what were the grounds for such a decision if the person still requires residential care. If a local authority states that section 117 has been lifted, but a resident still has mental health problems, then clearly this case could be useful if the proper procedures under the Code of Practice have not been followed.
Although Ombudsman Reports are not binding in the same way as caselaw, it is likely that this investigation will be carefully considered by other authorities, in particular those which are still charging, or have recently ceased charging, but did not consider the question of reimbursement
Because of the nature of their illness, it is likely that many residents who have previously been detained under the Mental Health Act will have their financial affairs dealt with by attorneys or receivers. They would have no reason to believe that such residential care should be free unless it had been pointed out to them. It is therefore essential that advisers of older people understand the importance of receiving services under section 117 and are satisfied that all decisions on this matter are properly made. Given the cost of residential care, the financial implications for their clients could be considerable. Advisers should not delay in taking up the matter with local authorities to end current charges to clients and raise questions about refunds.
Pauline Thompson, Age Concern
Policy Officer Community Care - Finance.
