Good Morning.
My Mum was setioned under s3 and now receives 117 aftercare. She is aged 93 suffers from complex Dementia, Diabetes, Stage 3 Kidney Disease and various other ailments.
Originally the SW chose a Cat 3 Nursing Home that specialised in Dementia/Brain injuries. This was a “sister” home to one already operating. Unfortunately the home had not yet been registered with CQC so LA would not consider funding until it had done so. The SW then put her in a home which is totally unsuitable. I have asked for Mum to be removed to one that has facilities for Complex Dementia. They are refusing despite a list of complaints i.e. no lounge, neglecting her feet (Diabetes), residents left in room with no carers present (Mum has 1-2-1 such is her needs) the list goes on.
They ( SW & CCG) seem to think these complaints can be sorted, they cannot and are now not willing to move her to a better facility on the basis that it would be “unsettling” for her. and not in her best interests. Being neglected is not in her best interest. I have LPA but the said that doesn’t count for anything. I am at my wits end as they are blocking me at every move. Please can someone help? Thank you
I see you have just joined this forum. What you are describing is familiar to me and has been for a long time.
I have a brother (75) and sister (79) and I am the Nearest Relative for both and the RPR (Relevant Person’s Representative) for my sister who was diagnosed with Alzheimer’s in 2011.
You do not say if you are the RPR for your mother, have involved your MP, started a complaint’s procedure with the authorities which you must do before taking the matter to the Ombudsman.
You - acting for your mother - can get Legal Aid .
In the meantime, could you afford to pay for someone of your choice to go into the home ? Also, have you contacted the Alzheimer’s Society and the campaign “John’s Law”?
Hope you wlill write again on this site as it is concerned with legal matters. You can also contact me directly and I can give you more details of my situation.#
Wishing you luck and persistence.
Rosemary Moore
rosemary.moore@virgin.net
Thanks Rosemary.
It is so fustrating. At first I complained about my Mum’s care and state of home but they have turned this around saying that I am concerned Mum is not settled, she isn’t, but I don’t think because of her condition she would be settled anywhere, not even the Hilton!!
I am the RPR and also have LPA@s for Health & Welfare and Financial & Property.
As I said Mum has really complex dementia and the first home specilised in this condition, along with her medical needs. The home they put her in is just residential altho’ they say they are registered for dementia which is in my opinion the fact they lock them in and the carers have done an NVQ hardly specialised IMHO.
On this basis I am challenging them. Also I wasn’t given any choice in the matter and after reading legislation it says that the LA must take account of wishes and offer choice so they have broken the law there I think, tell me different if I am wrong. New to all of this and it seems a minefield.
What I would really like to know if Mum is getting 117 aftercare (funded by LA & NHS CCG) am I still entitled to ask for a personal budget to see how much the home is actually costing v the nursing care?
Dear Pam,
as LPA for welfare you are the decision maker for any decision within scope of the LPA. That means that it is up to you to decide which of the care options is in your mother’s best interests. Unfortunately it is up to the LA and CCG to identify care options and you can only choose from the available options. Having said that, they do have to offer choice, and should not deny an appropriate option, unless it costs more.
Stephen Ward
The following factsheet from Age Uk may be helpful if you have not already seen it - particularly page 16
As you have those powers, LPA etc, you are in a very strong position. And as you have already made a complaint and have had an unsatisfactory reply you can send a complaint to the Ombudsman.
The home is not safe for your mother. She s entitled to appropriate NHS and social care and should have had an assessment for NHS CHC (Continuing Health Care)
I have made a suggestion that you find a carer - at your expense - to go into the home each day and I would also ask the Home to install - at your expense - a video device so that you can view your mother 24/7.
I have also suggested you involve your MP, the Alzheimer’s Society and the “John’s Law” campaign.
Thank you for bringing your situation to this forum. You are helping me and I believe many others…
Rosemary
As you are RPR and saying that your mother is in an unsuitable care environment, my thinking would be to make a Court of Protection application under s.21A MCA, in effect, saying that the “best interests” qualifying criterion for DOLS is not met and seeking that the local authority explore other options via the CoP process. A list of MCA accredited legal representatives can be found here: Mental Capacity (Welfare) Accreditation | The Law Society and the advantage of the s.21A proceedings is that they should be “free” as non-means tested for legal aid and also “speedy” as involve art 5(4) ECHR considerations.
Well done you!
This is the tip of the iceberg.
Again, many, many thanks.
Rosemary
Thanks Stephen., very helpful. I have put forward three other homes that offer specialised dementia care. The SW said that my Mum does not have any “primary Health Needs” so residential only is the only option. These homes offering specilaised Dementia care are residential with nursing and she would be in the dementia part.
I think she has been put here as a cheap option despite saying because she is 117 all her care is funded and there is no ceiling.
Thanks Ian this looks interesting. I have to go out to collect her medical records now but will give it time it deserves to investigate your information properly.
Thanks Chris No I haven’t seen this again have to go out but will give it a good read when i get back
Hi Everyone
Qucik update I have just been for records and to visit another care home who specialise in complex dementis. Very nice…and factual. The Main administator told me the care home fees. I told her Mum was down as Cat 3. She stated that Cat 3 is NURSING!!! which I wanted to know from SW who avoided my questions repeatedly. Cat 1 & 2 are residential only, the home Mum is in has always been CAT 1 or 2.
So have been proved right, she is in wrong type of home. I will keep chipping at this till I finally get the answers, legal knowledge etc.
Now going to sit down with a coffee and digest all the info you kindly sent. Many thanks to you all fr your help. No doubt I will be back later
I’ve been waiting for the ombudsman to reply to my complaint since February – can’t believe it takes this long!
I found that Council have to give you the choice of your preferred home providing you meet criteria, which is
The preferred accommodation is of the same type that the LA has decided to provide or arrange;
It is suitable for the person’s needs (i.e. the needs identified in the CPA care plan);
It is available;
Where the accommodation is not provided by the LA, the provider of the accommodation agrees to provide the accommodation to the person on the LA’s terms;
That is in legislation. Also the SW hs said Mum is NOT allowed to top up if accomodation costs more. I also found this
The introduction of patient choice for s.117 aftercare accommodation
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.
Also my Mum IS allowed to pay a top up which SW said she couldn’t on 117
Where the cost of the preferred accommodation is in excess of what the LA would expect to pay, the LA must be satisfied that the person being provided with accommodation is willing and able to make a top up payment for the additional cost and the payer enters into a written agreement with the LA to pay this additional cost.
and
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.
and
-
Choice – in this sense – refers to the assessed service user’s legal right to choose a provider of a package of services that includes accommodation, paid for and contracted for by a local authority.
-
Choice rights are rights to choose to which provider of accommodation of a given type, the council must then pay its money, for services to meet one’s needs**. A right, in this sense, refers to an enforceable legal right, ie something that must be done by a council, or else it has acted unlawfully**.
So that’s sorted that out!!
Another article states that
- Adult social care staff’s not knowing about these rights is obviously maladministration, because it would mean practising on a day-to-day basis in care planning, and hospital discharge, without delivering people’s legal rights .So it should be complained about and then taken to the Local Government Ombudsman by the person…oops SW is in trouble!!!
Also this aticle explains what is the right accomodation
In R (Mwanza) v Greenwich LBC and Bromley LBC [2010] EWHC 1462 (Admin**),** the High Court held that accommodation is a “common need” for all people and that therefore, in order for accommodation to be an aftercare need it had to be “accommodation plus”, i.e. specialist enhanced accommodation that meets a need that arises from a person’s mental disorder. Essentially, the crux is that the person’s need for accommodation is over and above every human being’s common need for shelter and housing. This means that the accommodation needed to have additional features to it and that those additional features needed to arise from or meet a need from the person’s mental disorder – over and above a need for basic shelter.
I hope that all this info will help somene in same position as me or even partly.
From the email I received re Mum’s care I think the SW/CCG will be going down the “best interests” road saying that the move would “unsettle” her. Bring it on I have evidence that when she was moved from a 6 month mental hospital placement according to LA she was “settled” in her new placement within 2 weeks lol so why should this be any diferent. If they refuse to move her as we meet all the criteia they have to inform me in writing and if I object I can go further.
I am now angry and taken off my kid gloves, emotional head and are ready to challenge, battle and do what ever it takes to make Mum’s time the most comfortable, happiest etc as I can.!!! As someone said, can’t remember lol “Bring it on!”
Just to re-iterate: as you have LPA Welfare, it is for you, not the Council, to make the best interests decision, choosing from the available options.
Dear Pam
I wanted to add to Stephen’s point about your position as LPA for personal welfare. From your post, it appears your mother is under the Deprivation of Liberty Safeguards (DoLS). One of the safeguards in the law is that as her attorney (officially ‘donee’) the DoLS best interests assessor must ask you if you refuse the accommodation.This is called a ‘No Refusals’ assessment and should have been completed before the deprivation of liberty can be authorised. Please see paragraphs 4.26 and 4.27 of the DoLS Code of Practice which explains this: https://www.cqc.org.uk/sites/default/files/Deprivation%20of%20liberty%20safeguards%20code%20of%20practice.pdf
As your mum’s RPR (representative) under DoLS, the local authority is legally obliged to send you a copy of the DoLS authorisation (also known as a ‘Form 5’) together with a copy of the assessments. You can check whether these assessments accurately recorded your view as attorney.
If it is the case that the local authority went ahead and authorised the deprivation of liberty, ignoring your objection, you may want to take legal advice as the deprivation of liberty is likely to be unlawful. Solicitors are available on www.solicitors.lawsociety.org.uk
Best wishes
Aasya Mughal
Edge Training & Consultancy Ltd
Hello Pam,
Can I ask you what was the process of receiving Section 117 aftercare like? Was there mention of top up fees for particular care homes and any financial assessments carried out? Hope you can help on these points, you can contact me directly if you don’t want to put details on forum. Thanks AJM
Hello AJM
The process is that the hospital do a CHC Assessment (Look online for CHC) Ask to be present so they don’t downplay your Mum’s needs. This then goes to the Clinical Commissioning Group. Between the CCG & Local Authourity they come up with a budget and then the SW should (by law) give you a choice of homes. Do not let them fob you off at this point. Insist on your right of choice. I am off to watch Gine/Fred tc and rather tired but tomorrow I will send you the info I have found
Kind Rgards
Pam