denotes premium content | Jan 7 2009 Regular
posted 13 Nov 2007 in Volume 13 Issue 1
Case Digest
S.117 Top Ups considered – Complaint against North Yorkshire CC (05/C/13158)
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. The cost of the accommodation must be paid for by the local authority and/or the NHS. There is no definitive guidance as to whether people accommodated under s117 can ‘top-up’ payments towards the cost of their care, if they wish to be accommodated in a home where the charges are more expensive than the council normally pays, or is willing to pay.
There were two main aspects to the complaint:
1. 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;
2. 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 council had agreed to pay for a home in their area, which they felt was suitable for the mother’s needs, but which the family saw had poor standards of care and accommodation, and would have been very difficult for the family to maintain regular contact. 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 Ombudsman found that the council:
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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;
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Had produced no positive evidence to demonstrate the basis for its view that their choice was suitable. No officer visited that home and that home did not assess the mother’s needs;
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Had delayed reviewing its initial decision about third-party top-ups after representations from the daughter, her MP 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. The Ombudsman found that the council acted with maladministration and should pay the complainant £500.
Discharge of Section 117 complaint against Poole BC
Mrs Arnold, mother of Mr B Arnold, the complainant, had a history of mental illness. She had been detained in hospital under section 3 of the Mental Health Act 1983 on several occasions between 1997 and 2000. She was discharged from hospital on 11 January 2000 with a care package provided under section 117 of that Act. The package included a community psychiatric nurse to monitor her mental health, weekly day-patient care and some home care. R v Richmond Upon Thames London Borough of Southwark ex p Watson (1999), confirmed that local authorities were not able to charge a service user for aftercare services provided under section 117.
In November 2000, Mrs Arnold’s husband, who had been her main carer, had a stroke and was admitted to hospital. Without her carer, the council placed Mrs Arnold in a nursing home and the council paid the care home fees.
In December 2000, Mrs Arnold’s son, B, asked the council if he could move both his parents to a home near his home, in a different part of the country. They were both unable to care for themselves.
Legal advice from the council’s solicitor took the view that this changed her status, although they did not inform the son but only advised that she could be moved. B arranged to fund the care himself. Mrs Arnold continued to live in the home until her death in April 2002. The cost of the nursing home, excluding personal items and state payments, was £33,455.58. B made a complaint to the council that they had failed to discharge a section 117 order properly in December 2000, seeking reimbursement of the sums paid by him.
The council said that they had discharged his mother from section 117 properly but provided no evidence to substantiate such a claim. They alleged that the original care plan had lapsed, not because of any change in Mrs Arnold’s mental health needs, but because her principal carer had become unable to look after her and that the decision to discharge her was confirmed by the officer at the hospital whose duty it is to record detentions and other legal discharges under the Mental Health Act. Her discharge was recorded as being on the instruction of the responsible medical officer. The council assumed therefore that it must have followed a multi-disciplinary discussion. The son referred the complaint to the Ombudsman following no action on the part of the council.
The Ombudsman found that there was no evidence that the council undertook or sought a proper assessment of Mrs Arnold’s mental health needs to establish that section 117 aftercare was no longer required, and there was no such assessment. It also failed to hold a multi-disciplinary meeting, in accordance with the Mental Health Act Code of Practice, with the relevant professionals, the patient and her carer or nearest relative to review the care plan.
The Ombudsman noted that moving out of the area is not adequate justification for ending section 117 aftercare.
The Ombudsman recommended that the Council compensate B for the cost of the nursing home fees for the duration of her stay, plus interest at the relevant County Court rate.
Duty To Consult On NHS Services - R (Fudge) v South West SHA
[2007] EWCA Civ 803
The Court of Appeal has held that Strategic Health Authorities (SHAs) or Primary Care Trusts (PCTs) owe a duty to involve the public in or consult about the process by which the Department of Health proposes to introduce an Independent Sector Treatment Centre, provided by a non-NHS organisation. The government had asked SHAs to make proposals for the use of the independent sector within their areas. The Secretary of State subsequently notified the SHA that it proposed, instead of the ISTC, the Department of Health would devise a scheme for the area. Although taken out of the SHA’s and PCT hands, the Court of Appeal held that there was a duty on the PCT to make arrangements to secure public involvement in and consultation on proposals relating to National Health Services under the Health and Social Care Act 2001 s.11, which it had failed to do. There was not a duty on the Secretary of State to consult, but there was a duty on the local NHS provider. The obligation remained even where the trust was not responsible for decisions made and schemes devised by the Department of Health.
An illustration of how the Court of Protection exercises its powers
Re G (ET) (A Patient): Re G (TJ) (A Patient)
[2007] EWHC 1861 (Ch)
Although this case concerns the former Court of Protection’s powers exercised under section 95 and 96 of the Mental Health Act 1983, which has been repealed by the Mental Capacity Act 2005 (MCA), it serves as a useful illustration of how judgments are arrived at. The equivalent provision of section 96 is now contained in section 18 of the MCA, with no equivalent section 95. However, section 4’s best interests checklist is very wide and flexible, and the Court would only make decisions that they consider are in the person’s best interests. The information the Court now requires is contained in Practice Direction 9F, which covers all matters mentioned in this judgment.
The case concerns Mr and Mrs G. Mr G was born in 1929 and his wife Mrs G (referred to in the judgment as T) was born in 1928. Both were under the jurisdiction of the Court of Protection and lived in a care home. Both were also mentally incapable of making a will.
The Court of Protection was required to determine various applications by the receiver of G and T, and by their son (N) and daughter (C). These were:
(1) The receiver applied for a lifetime gift to C of a substantial capital sum for the purchase of a flat in London and the right to occupy a French property, which C occupied, indefinitely, together with an order authorising the receiver to pay C maintenance. (The property was owned by the family company, where G and T were the main shareholders);
(2) N applied for a lifetime gift of the ordinary and preference shares in the family business (which were owned by G and T), where he had worked since leaving school. He also applied to have the benefit of G’s loan account to the family company;
(3) The authorisation of statutory wills; and
(4) Clarification of a trust created by G’s father of which G was a trustee.
HELD:
(1) The first issue for the Court is to have regard to the requirements of G and T. Section 95(2) of the Mental Health Act expressly required the determination of the assets and income of patients and their future expenditure requirements, which involved consideration of any increase in future care expenses. On the figures available, their respective assets and income were surplus to their expected requirements and provided scope for consideration of gifts to the children;
(2) The French property had been purchased as a home for C, albeit by the company, and so it was clear that G and T would have wished for their daughter to occupy the French property indefinitely. G and T would pay for the transfer of the property from the proceeds of their former home, and one half of the loan accounts for its true value. The money for the transfer would come from the net proceeds of the sale of G and T’s former home, and from one half of the loan accounts, as an advance payment of sums that would pass to C under G and T’s statutory wills;
(3) There was no adverse impact resulting from a lifetime gift of the shares, since G and T would not have expected to realise the capital value of their shareholdings. They would have wanted the business to continue rather than be wound up, as they would have been concerned about the future of their staff. Had G and T been capable, they would have wanted their shares in the company to pass to their son on their deaths and not before. However, in applying Re: DJ (1982) Ch 237, which the Court said had applicability to lifetime dispositions as well, in a lucid moment, they would have realised that their residential care needs would not have been affected by a transfer of the shares, and that it was good estate planning.
As such, the shares would be transferred to N provided:
(a) The receiver was satisfied that the title to the French property was transferred by the family company to C;
(b) The receiver was satisfied no further action was required by the family company to enable pension and annuities to be purchased from G and T; and
(c) N indemnified G and T against any taxes that they might become liable for on transfer of the gifts. (4) There would be a shortfall between income and expenditure if the outright gifts were given to C. As such, the amount of maintenance requested by C was reduced, and the flat she wished to purchase would be acquired in the names of G and T in trust as to one half for C and a quarter share each for G and T. C would live in the property rent free. Provision was also made for C’s daughter’s school fees, for the purchase of a car and payment of C’s debt;
(5) There was no evidence that the trust created by G’s father concerned anything other than shares in the family company. The court exercised its powers to vest the shares equally in N and C. There were issues concerning the identity of the executors and trustees in the statutory wills. Although N had had a few difficulties with the appointed receiver, they were insufficient to disqualify him from his duties. There were advantages to there being two trustees and executors, and a partner in the existing receiver’s firm was appointed.
Case Digest prepared by Caroline Bielanska, chair of Solicitors for the Elderly: www.solicitorsfortheelderly.com
