Decision Date: 14th October 2019
Miss B complained on behalf of her late father, Mr G.
Mr G was admitted into a mental hospital under Section 2 of the Mental Health Act 1983 (The section status later changed to a section 3).
He was deemed to lack capacity to decide about his discharge.
There was a best interests meeting where the social worker explained to Mr G’s family about s117 aftercare and confirmed the Council would fund a placement within its agreed rates. The social worker told Miss B if there was a top-up payment, the family would have to pay. The social worker provided a copy of the legislation to the family to read.
It was concluded Mr G needed a general nursing placement. The Council sent Mr G’s assessments to nursing homes which had vacancies.
Miss B asked a nursing home, Home X, to assess her father’s needs in April. Home X, which was in a different local authority area, decided it could not meet Mr G’s needs in its general nursing unit but could meet his needs if he was placed in its dementia care (EMI) unit. However there were no vacancies at that time.
In May the Trust completed another nursing needs assessment which confirmed Mr G had needs requiring an EMI setting and not general nursing. The Trust did not involve Miss B in this assessment or notify her when it was done.
At the end of June, the social worker spoke to Home X and it confirmed it had assessed Mr G and said it could meet his needs. Home X said Mr G could be admitted on 4 July if funding was agreed.
Miss B had agreed Home X was the preferred option, but refused to pay the weekly £150 top-up fee. Miss B said she had taken legal advice regarding funding as she felt her father’s care should be free under s117. She also said that none of the other homes the Council had suggested were suitable for Mr G so that there was no real sense in which the extra £150 was an extra.
The funding panel approved the costs of Mr G’s placement at the local authority rate where Home X was located. The family needed to sign a third-party top-up agreement before Mr G could be discharged. Miss B she said she would not sign the form but would pay the top-up in the interim pending legal action she intended to take against the Council.
After Home X said it needed the form signed or they would give away the bed, Miss B signed it. She said she felt she had been bullied into signing the form. Mr G was discharged to Home X shortly after this.
What was found
The LGO found that the Council was not at fault regarding the top-up fees.
The CCG and the Council had a statutory duty to meet Mr G’s needs which fell under the terms of section 117 of the Mental Health Act 1983. The LGO considered that the CCG and the Council discharged this duty and arranged and provided aftercare. Even during the first best interests meeting the Council and the Trust provided information to Miss B which explained why a top-up payment was required if her father moved to accommodation which cost more than the amount allocated for her father’s needs. This was in line with relevant legislation and statutory guidance. The LGO also stated that it showed good practice.
Therefore, it was right that Miss B needed to sign the third-party top-up agreement.
The LGO did say however, that the Council could have considered a different approach when she was reluctant to sign the form. For example, it could have considered whether to make a best interests decision to move Mr G to a different home in the absence of a willing third-party. The way the Council dealt with this matter caused Miss B some distress at a time when she was dealing with the difficulties associated with moving her father into care.
The LGO found that the Council was at fault in regards to sharing Mr G’s updated nursing needs assessment with his family.
The Council determined that two homes were affordable within Mr G’s allocated funding and that they had vacancies. However there was no evidence that the Council or the Trust sent Mr G’s updated assessment, to those homes, after they had completed it. This was fault.
The Council and the Trust should have shared the updated nursing needs assessment with the homes and Miss B for completeness. As a result, Miss B was left with uncertainty about the choice of accommodation process.
The Council and the Trust agreed to pay £200 and apologise to Miss B for the uncertainty she was left with about the choice of accommodation process, and for the distress she experienced in the way they dealt with asking her to sign a third-party top-up agreement.
Points for service users and families, and s117 teams
It is correct that top-ups are able to be shouldered for s117 patients. As with ordinary top ups, the choice actually has to be the choice of the PERSON, not a best interests consultee but the LGO’s report doesn’t focus on that. We don’t think it’s unlawful as such to treat the family as supporting the person’s choice through best interests principles.
There is no such thing as a personal budget under the Mental Health Act, but there is the notion of a usual rate, and if the council can evidence a usual rate that is sufficient to fund adequate appropriate care, a home that is more expensive than that usual rate can be selected, if there is a top up.
The regulations refer to that rate:
…where the cost to the local authority of providing or arranging for the provision of the preferred accommodation is greater than the amount that the local authority would expect to be the usual cost of providing or arranging for the provision of accommodation of that kind, the additional cost conditions in paragraph (3) must also be met.
We say IF there’s a usual rate, because we are regularly told that there is such a great shortage of proper placements for people with s117 needs and rights that there really is not such thing as a usual rate: there is a spot rate based on supply and demand on the particular date, and all clients are different.
It is NOT true to say that the relative is the only source of a top up. A client him or herself can pay a top up under the regulations because the individual is not paying anything from their assets under a charging framework for that placement.
Reg 4(3) The additional cost conditions referred to in paragraph (2)(g) are that—
- the local authority is satisfied that the person for whom the accommodation is to be provided or another person (“the payer”), is willing and able to pay the additional cost of the preferred accommodation for the period during which the local authority expects to meet needs by providing or arranging for the provision of that accommodation; and
- the payer enters into a written agreement with the authority in which the payer agrees to pay the additional cost. [so they need to have capacity or a deputy or an attorney if they don’t have capacity]
Regarding the suitability of the vacancies that the council identified – the LGO said this: “I have not seen evidence to show the Council or the Trust sent the updated nursing needs assessment to these two homes or any other home in its area. This is fault.” The Council and the Trust should have shared a copy of the updated nursing needs assessment with the homes for completeness to ensure they could meet Mr G’s needs.
So what is not clear from this report is the question of suitability, which is a professional judgment and not a matter of just being OPEN and registered. If there were two homes that had vacancies, and they were UNSUITABLE for the individual, ie indefensibly unsuitable, not just unsuitable in the view of the family, then they did not count, and Miss B’s position on refusing to see the extra AS an extra would have been a stronger position.
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The full Local Government Ombudsman report of Manchester City Council’s actions can be found here