117 funding and top ups

Discussion in 'Legal and financial issues' started by malyon, Aug 27, 2015.

  1. malyon

    malyon Registered User

    Aug 27, 2015
    4
    Hi all,

    I would be really grateful for some help and advice. I will also try to make this as brief as i can!

    My mum had been sectioned under the Mental health Act - section 3 and as a result i discovered she would be eligible for 117 funding. My mum was in hospital for a year and it was recommended by her psychologist that she needed to go into residential care and a place was suggested. At this point no social worker had been present at any of the weekly meetings. My mum's mental health issues are connected to my Dad who has terminal cancer and i had to ideally find somewhere that could house them both as Dad struggled living on his own, even with carers coming in. As this was key for them both to be together.

    i looked at the home suggested, which was ideal and i felt could support them both and they could start enjoying their time together again. Naturally it was over the LA weekly limit.

    I have had a call from my mums social worker this morning and he is preparing her assessment to go to a funding panel. However we will be required to make the top ups. Is this correct?

    I've been trying to read information online but am getting confused with the changes in the Care Act 2014.

    Grateful for any advice.

    Thankyou
     
  2. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    The New Care Act does allow first and third party top ups but only where you have chosen a different, and more expensive, setting to that proposed by the LA. From what you say you have agreed to the one suggested so they should not be asking for a top up.

    Annexe A Sec 44......
    https://www.gov.uk/government/publications/care-act-2014-statutory-guidance-for-implementation
    :)
     
  3. malyon

    malyon Registered User

    Aug 27, 2015
    4
    It's a bit of a tricky one, as the care home was one suggested by my Mums CPN and her psychologist. Her social worker only came along to the following meeting, probably as a result of me initiating mum's stay at the home. No home had been suggested by the LA.
     
  4. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    You should be asking the SW about this and find out where they are willing to fund a placement.

    Since the current home really wasn't your choice, more that of both the CPN and the psychologist, then you have a stick to use with the LA to argue for no top up or at least reduce it.
    :)
     
  5. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    4,781
    Salford
    Hi Maylon, welcome to TP
    Call their bluff, ask them to find somewhere suitable that doesn't require top ups.
    It is a bit dull but page 395 on the link below is the bit Pete refers to.
    Basically ask them where they can put your parents without a top up, invite them to let you have a list of the places available so you can go and look at them, then ride down there on your unicorn and look at them:) Unicorn! Yes, because if the alternative suitable homes exist so could unicorns. Both your parents have complex needs and so invite the LA to find a viable alternative within their budget or pay up for the place you've chosen. Refuse to pay top ups and see what happens, eventually they'll have to back down.
    You aren't "required to make the top ups" in spite of what they may say, see if you can get that in writing, ask them which bit of the act says that, print off the front page of the 2014 act, attach it to 505 pages of blank paper and call their bluff.
    K

    https://www.gov.uk/government/uploa.../file/366104/43380_23902777_Care_Act_Book.pdf
     
  6. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    #6 Pete R, Aug 27, 2015
    Last edited: Aug 28, 2015
    No Kevinl it might be what you are referring to but not me.

    Not all of the first part of Annexe A is relevant as the rules and laws are slightly different for "Choice of accommodation and mental health after-care". So if you start at Sec 44 as I said in post #2 it tells you which parts are relevant and to refer back to.
    :)
     
  7. Wirralson

    Wirralson Account Closed

    May 30, 2012
    661
    #7 Wirralson, Aug 27, 2015
    Last edited: Sep 22, 2015
    Care act s44 and mental health act s117a

    Having read and re-read the relevant sections, I think the position is as it was before the Care Act in this respect. If it is the Local Authority that is proposing the care haome as being the only one which meets your mother's needs, and that home is more expensive than their "expected to pay" rate, then they cannot charge for top-ups. But, if the person being detained under s3 of MHA83 expresses a preference for a particular care home (or their carer or other relative does so) and that home both meets their needs (a pre-requisite for any Local Authority funding) and costs more than the Local Authority's "expected to pay" rate, then either the person concerned's assets must be used or a third party must agree to pay a top-up. This appears to be an attempt to clarify and codify on a statutory basis what had hitherto been a grey area. It also allows the patient's assets to be used more directly - previous to s117A this was technically unlawful, but was easily lawfully circumvented.

    In your case it appears the NHS has suggested a particular home, but that you have suggested it to the LA, and the LA is using this as a basis for charging a top-up. Given the pattern of events you describe, it may be difficult to shift responsibility back to the LA. However, I'd suggest (a) seeking specialist legal advice before you do anything else and (b) make it clear to the LA (after the legal advice) that you did not propose the home but merely relayed what the NHS had recommended, and then use Kevinl's argument above asking for the LA's list of suitable places. It is worth trying the argument that you are only the messenger and that the position is no different from the NHS writing directly to the LA. Be aware, though, that this may not work. Incidentally, AIUI the NHS is not supposed to recommend care homes to relatives, although it may do so to LAs. There should be a DH or NHS circular on this somewhere.

    On a wider perspective I see the new s117(6) combined with s117A (which follows on from the decision in the Afework case (R (Afework) v London Borough of Camden [2013] EWHC 1637 (Admin)), as part of an attempt to roll back the boundaries of LA liability for s117 aftercare payments. This doesn't just affect dementia cases but the nature of the illness weighs more heavily on such cases than those cases where the patient can be and is managed in the community.

    Wirralson
     
  8. malyon

    malyon Registered User

    Aug 27, 2015
    4
    Paying invoice

    Thanks everyone for your help, i really appreciate it. The last 2 years have been such a hard slog and no-one is there to guide you, I've just had to muddle through!

    My mums social worker is now on leave for a week and on his return his assessment should go to the funding panel.

    Should i wait until the outcome of the assessment panel before disputing the top up? I have also received an invoice from the care home requesting payment, should we pay this?

    Thanks again everyone
     
  9. Beate

    Beate Registered User

    May 21, 2014
    11,713
    Female
    London
    If you are disputing the top ups, of course you shouldn't pay this. Just let them know what's happening, I am sure they can wait a few more weeks.
     
  10. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    If you are happy with the home you do need to tread a tad carefully especially since this was not a problem of their making.

    Can I ask who has been paying the home up till now as you said SW wasn't involved at first?

    Have you signed a contract with the home to pay any top up? If not tell them to bill the full amount to the LA and then when things get sorted you can pay the LA anything that is owed. (Sec 50 of Annexe A gives that option)
    :)
     
  11. Wirralson

    Wirralson Account Closed

    May 30, 2012
    661
    Pete R's advice is good. I'd seriously quesion beate's advice. Delaying contacting the care home about the payment (as distinct from paying) could leave you liable to interest penalties and enforcement costs. You also do need to be clear who has entered into the contract with the care home. I'd suggest paying for a couple of hours with a qualified professional (lawyer) could be the best money you'll spend in sorting this out.

    W
     
  12. Beate

    Beate Registered User

    May 21, 2014
    11,713
    Female
    London
    I quite clearly said to let them know what you are doing - I said nothing about delaying contact!
     
  13. malyon

    malyon Registered User

    Aug 27, 2015
    4
    Think I will have a chat to the home, they have been very supportive so far.

    I have not seen any contract from the home and this is the first invoice received. Of course my mum may have signed something and I don't know? The social worker who we had at the end of mums stay in hospital told me they would send me a contract. It never arrived.
     
  14. Karjo

    Karjo Registered User

    Jan 11, 2012
    481
    You have acted on your parents best interests to place them in the same home and maybe you could use this to defend/promote your choice. I would also defend yourself by saying you were probably not given enough information by social services about funding. I would not volunteer to pay any top ups from your own funds as there can be quite a gap between the councils rate and the private rate and this is bound to increase in time.
    Is your Mum in a nursing home because if so you need to make sure the nursing component is also claimed.
    It annoys me with section 117 that we as family are not well enough informed and can easily make expensive mistakes. Ultimately it is not you who is now responsible for your Mum's placement, it is a joint responsibility between the NHS and SS to make sure her needs are met and to avoid further admissions to hospital, and while your dad is still alive you could say his presence may be helping with this so she is in the best place at this stage of her dementia. As far as I know she is now under the new care act able to pay top ups from her own funds, so it would make good sense to make sure her funds are well separated from your fathers who I assume is self funding but it still makes a difference even if he is not self funding as your Mum is allowed to keep her pension. Do you have power of attorney because if you do you are better placed I would assume in acting in her best interests in signing for her to pay top ups from her own funds if it becomes necessary? (Its open to debate as to whether it is necessary) i think if there is any question over her capacity the council could be in a sticky position to ask her to sign for top ups herself, especially with 117 aftercare as it could be open to challenges at a later date as to whether she had capacity to make this decision. With p of a in theory you could make this decision. I would also look at who is a beneficiary in her will if she has one. I don't know if it would be likely but you would not want to be open to challenges about how your Mum's money is used by potential beneficiaries.
     
  15. Wirralson

    Wirralson Account Closed

    May 30, 2012
    661
    Sorry Karjo, but the last point you quote is not possible and almost certainly unlawful. A will, once made is sealed. It "speaks from death", and no third party has any right whatsoever to unseal it prior to that. Whether or not a third party has a copy of what purports to be the will is irrelevant. Beneficiaries' rights only kick in AFTER death and after probate has been granted. They have no rights prior to that, as, technically, they aren't beneficiaries. The only challenges that can be mounted while the testator (or in this case, testatrix) is alive are from any third parties on her behalf who believe that her assets are not being used in her "best interests". They don't have to be potential beneficiaries of a will or of the scheduled class of beneficiaries on intestacy. AIUI that is all that English law will allow to be examined. The only (rather specialised) circumstances in which a will can be opened prior to decease of the testator is if a "stautory will" is to be made to replace it - a somewhat rare event and which cannot have any bearing on how assets within the possession of the testator are spent.

    W
     
  16. Wirralson

    Wirralson Account Closed

    May 30, 2012
    661

    My apologies - but what you propose is actually worse. If there is a contract then the contracting party is liable to pay. Deliberately delaying payment for even "a couple of weeks" incurs interest at judgment rate and enforcement costs and could damage the OP's credit status. BTW, if there is no contract, then there is (probably) no liability to pay. Once again - the OP should seek professional advice.

    W
     
  17. Karjo

    Karjo Registered User

    Jan 11, 2012
    481
    Sorry wirralson, badly worded by me as I am always in a rush but really I just wanted to encourage all agendas to be considered as I am in a similar position. I never meant search for a will and open it. I really meant just consider this aspect as we never know what may bite us on the bum so to speak so have to always act in best interests with p of a and be able to justify decisions that could be challenged. In my case I know exactly what is in Mums will because Mum discussed it with us all. And As I am not a main beneficiary I always try and consider anything I spend. It was suggested to me by SS that I sign the agreements to pay Mums top up and then take it from her account but it sounded dodgy to me so I refused. Will never know whether it was the correct thing to do but I just felt taking money out of her account when I had agreed to pay the top up may have been a deprivation of her assets if she ever had to pay for her own care, ie 117 stopped.
     
  18. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    Not for this situation it is not as there is no contract. Talking to the home is exactly the right thing to do and I cannot think of one instance where it could make matters "worse".:confused:


    Also at my Mom's previous NH I agreed to pay a top up but had a dispute with the LA over the amount. When explained to the NH they were fine and waited till the dispute was over. No interest, no costs and my credit rating is fine.
    :)
     

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