Personal financial resources & s.117 aftercare: Tinsley v Manchester City Council 2017

 

People who follow my blog will know how exercised I can become about S.117 after care entitlement, especially when that entitlement is being concealed or misrepresented to patients by local authorities. Indeed, one of the commonest enquiries I receive is from relatives of people entitled to S.117 who are, to put it bluntly, being hoodwinked by local authorities who are at best ignorant of their duties, and at worst seek to defraud patients out of their money.

And so to Tinsley v Manchester City Council, a 2017 judgment from the Court of Appeal concerning a case that had been meandering through the courts for some considerable time, no doubt at considerable expense.

The case concerns a man called Damien Tinsley. Back in 1998 he was hit by a car while cycling which caused considerable brain damage and left him with an organic personality disorder. He ended up being detained under S.3 MHA, and was discharged to a mental health nursing home. In accordance with the requirements of S.117, the costs were paid by Manchester City Council.

In 2005 he was awarded damages approaching £3.5 million, of which £2,890,257 represented the costs of future care.

Interestingly, it was successfully argued during this court case that “the relevant authorities were entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them, and he concluded that they would not fund either a care regime which the claimant was prepared to accept (namely, accommodation at home) or even the care regime which the judge found to be reasonable.”

The consequence of this was that from that time Mr Tinsley has been using the settlement to fund his care, which has included the purchase of accommodation for him to live in.

After a number of years a new deputy was appointed for Mr Tinsley by the Court of Protection, who took the view that the Manchester “has always been obliged to provide him with appropriate after-care services” and in 2010 the deputy started to pursue Manchester for both a refund of the money Mr Tinsley had paid as well as damages.

The case ended up in the High Court, where it was concluded that it was unlawful for Manchester to refuse to pay for after care “on the basis that Mr Tinsley had no need for such provision because he could fund it himself from his personal injury damages.”

The case finally arrived at the Court of Appeal, which issued a judgment in October 2017.

On the face of it, it would appear perfectly reasonable for the money that Mr Tinsley had received in damages for disabling injuries that were not his fault, and which were specifically identified to cover the cost of his current and future care, to be spent on that care. After all, huge sums are frequently paid by the NHS for damage to patients which is designed to cover their long term care needs.

However, the issue here is that of entitlement to S.117 after-care, and the basic principle that after-care for the purpose of meeting a person’s mental health needs cannot be charged for.

So what did the High Court conclude?

Manchester submitted that “the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose”.

In a lovely paragraph, the Court demolished that argument:

This is an impossible argument… A refusal to pay for such services is effectively the same as providing such services but charging for them.  The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible.  Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front”.

The appeal by Manchester was therefore dismissed.

This has to be a harsh reminder to local authorities of their absolute duty to meet the expenses of patients entitled to after care under S.117, tempting though it may be, in view of the severe cutbacks to local authorities for social care, to seek to tap the person’s personal funds.

While it may seem perverse that even someone with unlimited funds is entitled to free care if they have once been detained under S.3 MHA, it is nevertheless the law.

Parliament had the opportunity when drawing up the Mental Health Act 2007 to remove this absolute entitlement, but it did not.

Parliament again had the opportunity to change the law when drawing up the Care Act 2014, which substantially amended S.117.

But it did not.

It remains to be seen whether the eventual reform of the MHA decides to remove this duty.

Section 117 Aftercare: A Brief Guide for Patients and Relatives

The Masked AMHP explains what section 117 of the Mental Health Act is all about, and what it means for sectioned patients and their relatives.

Section 117 of the Mental Health Act 1983 lays down a duty for the local authority and the NHS to provide services for people who have been detained under, and then discharged from, certain sections of the Mental Health Act.

I quite often get emails from relatives of people with mental illness asking questions relating to Section 117.

It often appears that the regulations and guidance relating to Section 117 are not being adhered to, or patients and relatives are not being kept in the loop when arrangements for aftercare are being made. I thought therefore that it might be helpful to lay out what the rights of patients and relatives are relating to Section 117

Can a person’s financial resources ever be considered when arranging for S.117 After Care? Recent Case Law

Regular readers of this blog will know how exercised I can become about S.117 after care entitlement, especially when that entitlement is being concealed or misrepresented to patients by local authorities. Indeed, one of the commonest enquiries I receive is from relatives of people entitled to S.117 who are, to put it bluntly, being hoodwinked by local authorities who are at best ignorant of their duties, and at worst seek to defraud patients out of their money.

And so to a recent judgment from the Court of Appeal concerning a case that has been meandering through the courts for some considerable time, no doubt at considerable expense.

The case concerns a man called Damien Tinsley. Back in 1998 he was hit by a car while cycling which caused considerable brain damage and left him with an organic personality disorder. He ended up being detained under S.3 MHA, and was discharged to a mental health nursing home. In accordance with the requirements of S.117, the costs were paid by Manchester City Council.

In 2005 he was awarded damages approaching £3.5 million, of which £2,890,257 represented the costs of future care.

Interestingly, it was successfully argued during this court case that “the relevant authorities were entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them, and he concluded that they would not fund either a care regime which the claimant was prepared to accept (namely, accommodation at home) or even the care regime which the judge found to be reasonable.”

The consequence of this was that from that time Mr Tinsley has been using the settlement to fund his care, which has included the purchase of accommodation for him to live in.

After a number of years a new deputy was appointed for Mr Tinsley by the Court of Protection, who took the view that the Manchester “has always been obliged to provide him with appropriate after-care services” and in 2010 the deputy started to pursue Manchester for both a refund of the money Mr Tinsley had paid as well as damages.

The case ended up in the High Court, where it was concluded that it was unlawful for Manchester to refuse to pay for after care “on the basis that Mr Tinsley had no need for such provision because he could fund it himself from his personal injury damages.”

Manchester again appealed, and the case finally arrived at the Court of Appeal, which issued a judgment in October 2017.

On the face of it, it would appear perfectly reasonable for the money that Mr Tinsley had received in damages for disabling injuries that were not his fault, and which were specifically identified to cover the cost of his current and future care, to be spent on that care. After all, huge sums are frequently paid by the NHS for damage to patients which is designed to cover their long term care needs.

However, the issue here is that of entitlement to S.117 after-care, and the basic principle that after-care for the purpose of meeting a person’s mental health needs cannot be charged for.

So what did the Court of Appeal conclude?

Manchester submitted that “the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose”.

In a lovely paragraph, the Court demolished that argument:

This is an impossible argument… A refusal to pay for such services is effectively the same as providing such services but charging for them.  The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible.  Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front.

.

The appeal by Manchester was therefore dismissed.

This has to be a harsh reminder to local authorities of their absolute duty to meet the expenses of patients entitled to after care under S.117, tempting though it may be, in view of the severe cutbacks to local authorities for social care, to seek to tap the person’s personal funds.

While it may seem perverse that even someone with unlimited funds is entitled to free care if they have once been detained under S.3 MHA, it is nevertheless the law.

Parliament had the opportunity when drawing up the Mental Health Act 2007 to remove this absolute entitlement, but it did not.

Parliament again had the opportunity to change the law when drawing up the Care Act 2014, which substantially amended S.117.

But it did not.

Ask the AMHP: Problems with Sec.117 and Autistic Spectrum Disorders

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

My postbag continues to contain frequent requests for advice from parents of mentally disordered people who are encountering problems in receiving appropriate aftercare, and are then being charged for it despite being subject to Sec.117 aftercare. They often find themselves caught in funding arguments between the local authority and the Clinical Commissioning Group (CCG).

Here are a couple of cases which also involve issues concerning Autistic Spectrum Disorders and mental illness.

A parent writes:

My daughter has learning disabilities and was admitted to an assessment and treatment unit under Sec. 2, followed by a Sec.3. She was discharged onto a CTO after a long drawn out battle trying to get the CCG and the local authority to agree who was going to pay for her continuing care.

She lived in residential accommodation before the section but it was not appropriate for her to return due to the severity of her needs. She had been diagnosed with Bi-polar disorder, and subsequently whilst in hospital on the Sec.3 she was assessed as being on the Autistic Spectrum and it was agreed she would be best supported by a provider with specialist knowledge around Autism.

She has been settled in her placement, but after a financial assessment by the local authority she has to pay nearly £90 per week towards her care costs. She has Sec.117 aftercare funding and the CCG pay 50% of her fees and the local authority pay 50% of her fees (then bill her for the £90 per week) After a recent DoLS application the BIA has questioned why she is paying for her care at all when she has Sec.117 funding. They are adamant my daughter should not be paying at all. My daughter had to be housed out of area as there was no provision to meet her needs in her home area. They have not argued this.

Can you help?

The Masked AMHP replies:

There can be no doubt. As she is subject to Sec.117 aftercare she should not be paying anything towards her identified mental health needs. She should be entitled to a full rebate of what she has been charged already.

The parent:

Would it make a difference that the CCG argued that her learning  disability is not related to her mental health issues? So they should only pay for half?

The Masked AMHP:

A learning disability is a mental disorder within the meaning of the Mental Health Act. Therefore needs arising from the learning disability are covered under Sec.117.  They're really trying it on!

Another parent writes:

My son is 30 and lives in supported accommodation that is funded by the local authority where he was living when he was sectioned under the 1983 MHA (many times, mostly under Section 3).  He was in and out of hospital for several years before being discharged 3 years ago.

Since he left home to go to college when he was just 19 his mental health was very poor and he was admitted to hospital with psychosis on numerous occasions.  He was put on anti-psychotic medication and eventually, when discharged from hospital, he was on a CTO.  The medication made things worse for him. The CTO is now lifted and he is now off medication.

For many years we thought our son was autistic (Asperger's) and that this was at the heart of his distress.  Eventually he was diagnosed with Autism Level 1. This diagnosis has really helped him turn his life round but we have had to pay for the psychological and day-to-day specialist support for him as the supported accommodation that he has been living in for the last 3 years is for people with mental health problems only and is very inadequate.

We have now found excellent supported housing that is Asperger's specific that will support our son to gain the life skills he lacks.  It will only cost a little bit more than his current care package (24 hours a week) but the CMHT and LA social worker are saying that the Housing Panel is not likely to support the move as the recent Placement Review recommended our son be stepped down to 'independent living'.  We have said we can afford the top-up on the fee difference.

The social worker is now implying that our son no longer has a mental health condition, that he is autistic and therefore should be assessed by the Adult Social Care team and won't be eligible for funding for supported housing.  Our son is very bright and articulate but this masks so much of his vulnerability and fragility.  The social worker is now intimating that he is no longer entitled to Section 117 aftercare funding.  This would mean he would be expected to live alone without support (unless we pay for it) and all that might mean for his safety and fragile mental health.

We see a continuum from our son's autism to his previous poor mental health - the social worker just sees CMHT/LA dividing lines and overstretched budgets.  How can we protect our son's Section 117 funding at least until he is receives the right support to enable him to live independently successfully?

  

The Masked AMHP replies:

It's difficult to give a definitive reply to your question. You say your son has experienced periods of psychosis in the past, but that he is no longer prescribed any medication. However, if he is still seeing a psychiatrist and/or has a care coordinator in a mental health team, then he is still receiving aftercare, and therefore would continue to be entitled to Sec.117 aftercare.

He could only be discharged from Sec.117 aftercare if he was no longer receiving any services for mental disorder, and was no longer considered to be suffering from a mental disorder within the meaning of the Mental Health Act. However, the definition of mental disorder is broad, and would include autism or autistic spectrum disorder.

A difficulty would be the difference between what you would like for your son, and what the local authority and mental health services consider he requires to meet his mental health needs.

If your son is still under a mental health team, it might be worth getting a NHS psychiatrist to review his diagnosis. If he has been discharged from the mental health team, then his GP could refer him for a NHS diagnostic assessment.

But in any case, autism is still a mental disorder.

The parent:

Thank you for your very detailed response.  It is helpful to understand that autism (albeit Aspergers) is considered to be a mental disorder (eating problems, anxiety and OCD are part of my son's life too).  My son hasn't yet been discharged from the mental health team but the pressures on the LA social care budget are such that he would be an easy one to pick off and no longer fund.  You are right it seems that there is now a difference of opinion about what we feel our son needs and what the CMHT and LA feel - painful.

Ask the AMHP: This Week Sec.117 Aftercare v. Continuing Healthcare

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP's postbag continues to be inundated with enquiries concerning Sec.117 aftercare. Difficulties often arise in connection with what Sec.117 aftercare does and does not cover, and the relationship between Sec.117 aftercare and the provisions for Continuing Healthcare.

An AMHP asks:

I am working with someone who is subject to Sec.117 and has a 14 hour care package we pay for. She has a number of physical health problems which are getting worse and is currently on a medical ward.

Her discharge is delayed because she requires a significant increase in her care package and we are arguing about who pays. If she doesn't meet the criteria for Continuing Healthcare surely it shouldn't be mental health? Argument is it should be as she's Sec.117.

The Masked AMHP replies:

Sec.117 is very clearly only designed to meet aftercare needs arising from the patient's mental disorder. It is not unusual for people to have both a mental disorder and physical health problems – an example was a man with schizophrenia and Friedrich's Ataxia. He was placed in a Care home for physical disability and the cost of that was met by physical disability services, and he was expected to contribute towards this cost.

A relative writes to the Masked AMHP with a problem about the local authority’s calculation of care needs under Sec.117:

My father for many years had undiagnosed longstanding complex mental health issues including personality disorder & hypochondria.  Last year (following a lifetime of being fairly impossible for the family to get along with) he was eventually diagnosed with vascular dementia.  Turning very nasty in the excellent nursing home he had agreed to go into, they applied for Continuing Healthcare funding and he was sent to a psychiatric ward for full assessment under Sec 2.  When the 4 weeks came to an end, they tried to detain him further on a DOLs but his behaviour was such that he had to be detained under Sec 3. 

The nursing home had applied for 1:1 CHC funding to deal with his attention-seeking behaviour and to re integrate him successfully; there were several weeks of arguments about this so his stay was extended. It was eventually agreed to discharge him with temporary 1:1 funding.  Asked about where we would like him to go the family expressed strong preference to return him to the original nursing home though there were suggestions of placements very much further afield which would have been impossible for family & friends to visit.  He has now been in the home for some 2 months and is mostly calm.

However, the cost of the home is over £1000 per week without the nursing element which is paid by the NHS.  Though my father is not badly off, and our main concern is to ensure he is in the right place, our mother remains in the marital home which needs to be maintained and she has needed some temporary care which may of course be needed again and more frequently.

We have been told verbally that the s117 aftercare payable for dad will be around £460 per month – it has not yet been released.  Of course the Attendance Allowance was removed during his hospital stay and I assume will not be reinstated. We have wondered how the amount of s117 funding is arrived at, as no-one has been able to tell us.  I do not believe that there is anywhere which could offer care at that amount in the area and the staff at the present home have been very supportive to us all so a move would not really be acceptable.

The Masked AMHP replies: 

The Care Act has changed some aspects of Sec.117 aftercare. This includes allowing people to top up their care if they want to stay in a more expensive care home than the LA calculates is needed.

As your father has been detained under Sec.3, he will be entitled to free aftercare for anything connected with mental disorder, whether dementia or psychosis.

His needs for aftercare should not be assessed on the basis of how much the LA can afford, but what his care needs are. They might say that his needs can be met in Care home A costing £500 per week, but if you wanted him to go in Care Home B costing £700 per week, then the LA should pay the £500 and the patient can then top up. This is one of the changes in the Care Act. They cannot state an arbitrary amount, which would not purchase the care that has been identified as needed. As a relative, you should be involved in these assessments.

If an assessment concludes that only the care home you have chosen can provide adequate aftercare, then the LA should pay (taking into account any CHC assessment).

Once your father is out of hospital, he should be entitled to Attendance Allowance again.

A worker in a voluntary organisation asks:

A recent determination from our local Community Care Group states that '...an individual who is funded under Sec.117 will only become eligible for NHS Continuing Healthcare funding (following a Continuing Healthcare assessment ) when they are discharged from Sec.117 or if they develop complex physical healthcare needs.'

The determination goes on to say that whilst mental health needs -- evidenced by challenging behaviour -- make the person concerned eligible for funding under Sec.117, the person's nursing needs due to physical health are not of a 'nature, complexity’, etc. to warrant NHS funding.

What I've been unable to clarify in several emails to the Continuing Care team at said CCG is whether the person's scoring in those domains related directly to mental health conditions was too low or whether, in fact, they weren't even considered because of a prior eligibility for Sec.117 funding. I'm a little confused by the distinction that seems evident in the determination, between 'physical health needs' and 'mental health needs' used in determining eligibility for Continuing Care.

The Masked AMHP replies:

Eligibility for Sec.117 aftercare is quite distinct from whether or not someone is eligible for continuing healthcare. CCG's have responsibilities for both Sec.117 aftercare and continuing healthcare. Under the MHA, both local authorities and CCG's have a duty to provide aftercare under Sec.117. How that aftercare is determined and paid for is a matter between the CCG and the LA (the Health side will generally be delegated to the local Mental Health Trust).

The Department of Health document, NHS Continuous Healthcare: Frequently Asked Questions, published in 2011 states:

“Arrangements under the Mental Health Act are separate and different from NHS Continuing Healthcare and the two should not be confused. .. It is preferable for a PCT to have separate budgets for funding Sec.117 and NHS continuing healthcare. Where they are funded from the same budget they still continue to be distinct and separate legal provisions.”

It also goes on to say: "It is preferable for a PCT to have separate budgets for funding Sec.117 and NHS continuing healthcare. Where they are funded from the same budget they still continue to be distinct and separate legal provisions."

Although that seems clear enough, things have changed since 2011. Primary Care Trusts were abolished on 31 March 2013 as part of the Health and Social Care Act 2012, which created GP led Community Care Groups to replace them. These CCGs were often dismayed to discover the expensive continuing healthcare duties that were transferred to them, and many tried to limit expenditure by unfairly and arbitrarily imposing conditions on eligibility. It does not necessarily mean that the CCG's don't have a requirement to meet these needs, whatever they may say.

However, the more recent document, NHS ContinuingHealthcare: Guide for Health and Social Care practitioners, published by NHS England in 2014 states:

“An individual subject to section 117 should only be considered for NHS CHC where they have significant healthcare needs which are not related to their mental health aftercare needs.”

It is true that Sec.117 aftercare is only designed to meet the specific mental health needs of a patient. If they also have physical health or disability needs, these will not be covered by Sec.117. The social care needs of a physical disability would be met by the LA, but the nursing needs, eg in a nursing home, would be met by Health, ie the CCG. Social care needs for a physical disability would be chargeable to the patient, whereas any specific mental health aftercare needs would not be.