Section 117 MHA Care home top ups and section 117 aftercare

Law and practice Mental Health Act
1

My mother is in a psychiatric hospital under section 3 MHA. She was admitted in Jan 2021 after self neglect in Nov 2020, emergency admittance to a and e local hosp, not eating drinking, needed drip and lost half body weight before transfer to mental health unit. Had lots of ECT, medications, suffering recurrent depressive disorder after sudden death of my father in July 2020.

Now talking of discharge to us or into care home but she wants to come back to me and sister but needs nursing care as lost mobility in first hosp due to being in bed so long.

Has capacity to make decisions which SW agrees but has mentioned using DOLS and DOLA if they could. Also mentioned CT of Protection if we don’t accept what they are offering under section 117 aftercare which is 2 hrs a day dom care in one house only, we wanted to split between two of us in two houses but no way.

Mum thinks we may not be able to deal with her toilet needs and doesn’t want us to have to but still wants to get out of hosp and come back to us.

Getting depressed again because starting to realise what will happen to her. Fell out of bed twice in past 5 weeks and banged head badly bruised.

We been in touch with MPs and they sent letter to health trust but they refusing to give any info because saying mum refusing to grant consent to share info to MP and claiming a manager asked her but after checking with mum she said nobody checked with her, obviously lying to prevent MP’s interfering (have 3 on the case).

Mum now back on section 3 because starting to not eat drink or take medication again, was also on it for 5 weeks in Jan Feb.

SW mentioned having to pay top ups for care home even under section 117 aftercare but I don’t understand why this is?

Also trying to get out of section 117 altogether with accusations to me of not looking after her house because we have been redecorating and doing work on it when the SW and OT called to check on its suitability for mum to return to (I have EPA).

All very nasty and threatening and completely out of the blue from someone we thought was there to be helpful not bullying and threatening to closest relatives. Came dressed as some sort of nurse in full NHS gear as well! Need help with this, causing lot of worry to us all incl mum who already lost husband of 60 years.

2

Hi AJM

First of all get a copy of the Mental Capacity Act and see what it says if Mum still has capacity. Then ask to see a copy of any assessments/care plans etc.

Also do a SARS request to get her medical file. If your Mum needs full time care thye will not pay for 24 hr care at home.

Ask the LA etc for a personal budget you are entitled to this to check just how much money she is entitled to.

As to her toilet needs unfortunately if she is at home then it will be up to you to help her.

I have used this site and googled all and everything as you need to know the facts, try not to get emotional (I did) because people dealing with your Mum do not they deal in hard facts.If I find anything in my searches that may help you I will pass it on.
Pam

3

Hello Pam,
Thanks for your quick reply, much appreciated.
Don’t want to approach LA until have to as have had trouble with councils before over care with my disabled son. Know they can be very unpleasant and bullying. Visited mum yesterday in hosp and she seems very depressed and going downhill, waiting for more ECT, but her anxiety seems overwhelming. I don’t know if me or sister could cope with her high mental health needs even before you get to physical. But she still believes she can come back to us and obviously don’t want to rule this out as it would destroy her hope. Have sent in request for medical report from consulting physician as you suggest but he on holiday at moment. What was your experience if you don’t mind me asking? AJM

4

Hello AJM

Not at all. My Mum was sectioned twice due to high acuity, somplex needs with Dementia late stage. I was told she wld need specialist enhanched care. Founf perfect home, it wasn’t registered as quite new, then SW decided to put her in a residential home registered for Dementia. Not specialised just doors locked and carers have done their training. Does not remotely match her needs so I am fighting to get her better accomodation under the rules/legal etc.
SW seems to think she is the Decision Maker in all this but she is NOT!!! I am as I hold an LPA for Health & Welfare which I have now found out gives me the right to ask for a preferred place. Also SW has not given me a choice (thru’ the LA) which is a legal requiremnt.
Today I received my SARS request from the NHS Trust who dealt with Mum and found some very interesting things.!!! which I will hit them with at our meeting.
Have you or your sister got LPA as above. If Mum still has capacity I suggest if you haven’t get one done now!! If she is in and out then I think you can ask a solicitor to do one but that costs.
Also insist, if your Mum hasn’t been sectioned, that they do a CHC Assessment, it is your right to have one. If on S3 she will get her care paid through the LA & CCG and she doesn’t have to contribute at all.
As for bringing your Mum home I looked after Mum for two yearsa nd believe me when I say it is a daunting task. She deterioated to a point when I couldn’t cope anymore with her aggressive behaviour, her delusions. Some weeks I didn’t get a night’s sleep I was exhausted. I think you and your sister must bite the bullet. Find a lovely home, there are some out there, and then you both can have your rest knowing your Mum is having 24 hour care and is safe. You can then have a relationship with your Mum which both of you deserve, instead of patient and carers.
So tomorrow look up every Trust etc incl Doctors and put in a SARS request. The only problem will be is if you don’t have POA which I think they insist on so you may need to get it done even through solicitors but t’ll be worth the money!!!

5

Hello Pam,

Just reading through your post, you say that my mum won’t have to contribute at all to her care after being on S3 and getting S117 atercare but the SW has mentioned paying Top ups even under S117. Did they not try this on with you? Looking at the Local Council and Social care ombudsman cases on S117 there does seem to be an issue with top ups, S117 and councils trying (and succeeding) to make people pay them. Thanks again, AJM

6

No the SW is saying we are not allowed to which isn’t true,

Great article here, makes sense of it all
https://emlawshare.co.uk/resource/understanding-s-117-aftercare-accommodation/

7

Hello Pam,

Top-Up Payments
Where a LA is providing or arranging accommodation as part of s.117 aftercare, it is open to the person or their family to make top-up payments to secure their preferred accommodation.

Yes it says you have the right to pay top up payments if you want.

But should you pay at all if the person is entitled to S117 aftercare? The top ups could be quite expensive, perhaps ÂŁ150-ÂŁ200 per week (ÂŁ7500-ÂŁ10000 year) which the relative would have to pay from the persons state pension probably. If it was more than this then where would the money come from? This is getting into means testing and asking for large amounts of money.

Seems that if you leave it to SW to make choice then under S117, CCG/Council has to pay the lot.

8

Hi AJM
Yes I agree is SW makes decision they will have to pay for all of it. I just asked SW the wuestion to see if she knew as she doesn’t seem to know the law regarding choice of preferred accomodation! My problem is I wasn’t given a choice it was a done deal. Mum had to leave the mental hospital and according to SW at that time only the home she is in now came forward. What I can’t make the social worker understand is
1] Home A High specialist home with nurses came forward but they were not registered with Council so altho funding was endorsed they couldn’t go onto DPS system.
2] In the meantime Home B was tele and told to tender. They accepted her. Residential with carers only.
I am so unhappy about her care in B so asked SW to find another home. I have looked at Home C which is residential/with nursing. SW is looking at home D SW doesn’t know I know this!] which is same as Home B.

This is not about money, or is it?? as for instance Home A was lets say ÂŁ4000 pw Home B is ÂŁ2000
Home C is ÂŁ3000. So they were willing originally willing to pay the ÂŁ4000 to give her the care she needed so home C is still cheaper but not as cheap as Home B.

SW assured me that it wasn’t about money it was about getting the right care for her.

Sorry to rabbit on but she has gone from getting enhanced specialist care in a nursing home down to a residntial placement with carers. So angry.

9

Hello Pam,
I would say it is always about money with the Social services (and the NHS for that matter), even if they say otherwise (they would wouldn’t they?). What might seem like a relatively small saving in the scheme of things is always treated as a worthwhile saving when it comes to the ‘public purse’ (have they mentioned this yet?). The SW in dealing with you, can’t legally admit it is about money of course (although they might and then deny it). I know this sounds very cynical but we had a very bad time with my son’s care (he has autism) a couple of years ago and this was involving a care package of a few thousand pound a year and the council were very concerned about MONEY!!
Did your mother come straight out of the Psychiatric hospital to the care home or go somewhere else first? From what you say, your health and welfare LPA gives you some power to pick where she goes but will you then have to pay the top up fees? Without being too personal, have you (or your mother ) got the means to do this - it sounds like the care home your mum needs would be very expensive and as you know the LA rate is very low (£500-£600 week). This question the LA/CCG have is do you have the cash in the bank or a house to sell to pay it? We all want the best for our parents but do we also want any inheritance taken away to pay for it? Have you contacted your MP about it? I contacted 3 MP’s (mums, sisters and mine). Sometimes this extra political interest gets things sorted without resource to legal action. You will probably have to explain what S117 is to the MP’s PA but they can then send a letter to the Primary Trust/Council. After that it is a case of complaining officially to the Primary trust, then the local council and social care ombudsman (or threatening to do so). If you decided to go legal it might be that a solicitor will take over everything, creating a conflict of interest with your LPA being under threat if any fault can be found with how you have acted for your mother. This is what I was told, that you could end up in the Court of Protection with you on one side being accused by your mother’s solicitor (whom you employed) of not acting in her best interests (or of not acting financially correctly - do you have receipts for all spending etc). Once they get a hold of it they make all the decisions between themselves. You feel so powerless.

10

Hi AJM

Yes Mum came straight out of the phychiatric hospital into residential care home when the agreed home was more like a nursing home. Mum does not have to pay anything. In fact my choice of home is less money than she was originally going to get. That is my argument that the home I prefer would work out cheaper than the original home!!
I do not spend any of Mum’s money unless she needs personal items i.e. slippers, clothes etc all accounted for.
I have another review coming up very shortly so waiting to see what happens before I approach relevant people.

11

Hello Pam, How often do you have the reviews and how do they operate? Who is present and what sort of things do they say? Do you bring anybody with you, solicitor, for example? Thanks again for all the info. AJM

12

I think you are suppose to have a review of placement about 6 weeks after they enter the care home. Not sure if this is repeated. I had the first one in which I expressed my dis-satisfaction and said I was moving Mum. The 2nd due next week is because of this. It was suppose to have been 7th Sept but kept being cancelled due to home having a positive covid scare or so they say lol
So at present compiling a folder based on what I found in my SAR’s request. Think they have blown themselves ot of the water here as conflicting things from different people and they haven’t even got an argument they can back up. Let them try lol

13

Hello Pam,
I think it is the consulting physician who carries the most weight and makes the final decisions on where the patient goes. They are certainly supposed to be responsible for it. The hospital SW represents the council even though they are employed by NHS under interchangeability reg 75 rules. Nurses can do social worker tasks and social workers can do nurses tasks or something like that. Have you got a solicitor? I would get some kind of legal advice if you can from a specialist as the hospital is likely to have on hand legal help (they handle MH tribunals in house often now).Your siutation doesn’t sound too bad in at least they have accepted the S117 validity and are providing funding for some sort of care home without asking for top-up fees. AJM

14

Hi AJM

No it is the “decision maker” who shuld make the decisions. SW/LA etc make these provided there is no LPA for the person concerned.

" or LPA (unless they have been appointed by the Court of Protection). This creates a legal decision-making authority
Also it says this about placements
" Section 75 of the Care Act inserts a new s.117A into the MHA which permits the Secretary of State to make regulations that allow a s.117 patient to express a preference for a particular type of accommodation where the accommodation is being provided by a local authority discharging the s.117 duties.*"
The Secretary of State immediately exercised these powers, bringing the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 into force at the same time as the Care Act on 1 April 2015 (Choice Regulations).

So as far as I am aware I am the ‘legal’ decision maker and I should be given a choice of accomodation by LA . let me know if I am wrong!

15

Hello Pam,
You are probably right about being the decision maker as you have a health and welfare LPA but you mentioned there is a lot of conflicting things from different people in the SAR’s medical information and here it is where the opinion of the consulting physician will hold most force. But you still have the final say. In my case I do not have a health and welfare LPA so the consulting physician should have a big say in what happens. AJM

16

Hi AJM
Your mother entitlement to s117 aftercare due to her s3 MHA 1983 also entitles her to request a Personal Health Budget (jointly funded by NHS & Local Authority) to be clear there is no personal contribution from you mother required.
If this is something that you may wish to consider contact your Clinical Commissioning Group in your area.

Regards

Francesco

17

Thanks Francesco

That’s a good idea! I am going to request this today and let’s see what they say. They didn’t even tll me this and I’m sure they should have done. Mind you there is a lot they should have told me, explained etc acording to the Lcal Authority document I found yesterday. Unfortunately my Mum has fallen …again and is in hospital at the moment so cannot do to much today as I will be visiting. They have taken her 1-2-1 off her whilst she is in there so nobody to care for her mental health except me. Cannot expect nurses, who are there to care for her, to do this as they can’t sit by her bedside 24-7. It’s disgraceful.

18

Hello Francesco,
What would a personal health budget pay for and how much money would be available? Would this pay for top-up fees? I am loathe to contact anybody apart from the hospital directly at the moment especially CCG’s or LA’s. Is a personal health budget means tested? The SW has already been trying to do an unofficial means test even under S117 free aftercare where it expressly forbidden to ask for payment. The problem with the whole system seems that the NHS hospital is legally bound to provide care whilst you are in hospital but once you go out to community care they are not legally required only under S117 which they try and get out of by any means possible including lying/intimidation/coercion, whatever it takes. Complete disgrace. AJM

19

Hi AJM
Go on to Facebook and join the ‘Peoplehub’ closed group which deals with all things to do with s117 aftercare, personal health budgets and more they are very helpful and knowledgeable more so than me.

Regards

Francesco

20

Hello Pam,
My mother was in a normal hospital for 2 months to start with, she lost half her body weight and nearly died because the nurses wouldn’t feed or give her liquid. She was put on a drip but wouldn’t eat at all. They considered a PEG but moved her first. They wouldn’t section 3 her for some reason even though she was assessed by psychiatrist and he thought she should be. I suspect because it might have made the local CCG/LA (Bury, which is in a different area from where she normally resides) responsible for S117 aftercare or caused legal confusion. They waited until she was transferred back to her own resident area (Manchester) before section 3 was used. There may be covid restrictions on hospital visiting, I can only visit one hour per week, one nominated person by appointment. AJM