I have a problem! My client has moved from residential care to a supported living placement and I have discovered that whilst he was in residential care he was paid a reduced 'hospital inpatient' rate of income support.

The client is a s.117 client (Mental Health Act) and his placement was fully funded by social services.

I have discovered that he should have been paid the full rate of income Support despite being exempt from having to contribute towards his care.

My questions are this:

where can I find legislation/case law that states that he should have been receiving full benefits

Would I be able to get this money back - or would i have had to appeal the original decision to pay the hospital rate of income support

I'd be extremely grateful for any help here!

Thanks!

Sam

You need to apply for a supersession of the original decision to pay hospital rate IS from the date of admission to the care home on the grounds that the decision was an error of law. The error is that he was not in hospital or similar institution.
It seems from what you have said that the DWP have assumed that he was funded by the NHS, not Social Care. A letter of clarification of this funding should be sent with the supersession request.

When making your case, refer the decision maker to their own guide DMG 18020, and then establish that the care provided was funded by the Local Authority not the NHS under the rules of Section 117 aftercare. You can find a copy of this section of the guide here. Look under volume 3 (TOP OF PAGE) chapter 18 Hospital In-Patients. You’ll be surprised how many decision makers at local level do not have a grasp of this ruling, so including a map often helps.

http://www.dwp.gov.uk/publications/dwp/dmg/index.asp

It is Social Services who will refund this money with interest as they received the Income Support at the time to pay for the care. If you go to the Local Government Ombudsmen website on www.lgo.org.uk you then go to LGO publications and then go to special report, you will find all the information here.

This is only the case where benefit has been paid by the DWP and the Local Authority has taken it to charge for section 117 care. It is rare to find a Mental Health Care Manager/Social Worker who is not aware of the LA responsibility to fund Section 117 placements, well, it is in this area. The only cases I find these days are where the DWP will not pay the full amount of benefit as they view people as being under NHS care and not Local Authority and continue to pay them hospital rates.

All the above info has been very helpful in educating me in this area - thanks.

What I am struggling with - is, now I have established that the cost of care was fully funded by Social services (not the NHS - dont know if this makes a difference) and this client was treated as a hospital inpatient - should he have recieved full IS or the reduced hospital inpatients rate?

My manager seems to think there was a 'some high court decision, some years ago" which said that s.117 clients retain the right to their full Income Support (even if in funded residential care) - but my manager cant back this up with anything solid, yet he still wants me to attempt to get this money back for the client. I am used to backing my arguements up with facts and law - none of which I can seem to find regarding the rate of Income Support for people in this situation.

can anyone help further?....meanwhile I am still searching....

Thnaks!

He should have received his full Income Support entitlement and not the hospital reduced rate. The relevant change of circumstances needs to be reported to the DWP and they should pay up as they were mistaken about or unaware of this fact. There is no legislation that you need to look at as he is not in any special group that gets special rates of Income Support. His section 117 MHA 1983 status is immaterial to this claim. If I remember rightly, when Residential Allowance was payable he would have received that as well and still not be charged. The only benefit that may be affected due to section 117 status would be DLA care.

You may have an issue with the LA for not picking this up. But if he was paid the hospital reduced rate I imagine that they did not make a charge as they knew that he was section 117 or that the hospital reduced rate was below the personal expenses allowance.

Keep it simple, write your letter and await the response.

Shaun

Establish if the person was getting full benefit but this was being taken by the Local Authority in payment for their placement. If this is the case then the Local Authority need to reimburse the client. You could speak to the Care Manager or Social Worker about the financial agreement set up with the home. Alternatively ask the DWP if the person was getting full rates of benefit during this period, if they weren’t, ask for a supersession. If this is the case then the DWP are at fault and the money needs to be reimbursed by them.

There was a ruling, it’s known as R v. Manchester City Council ex parte Stennett (2002) UKHL 34. This concluded that as the Mental Health Act 1983 is not included in the list of prescribed legislation of DMG 18037, that a person receiving aftercare under section 117 of the Mental Health Act 1983 is not receiving free in-patient treatment for benefit purposes. I don’t know where to find a copy of this though, do the House of Lords have a web site? Try punching it into Goggle.

Wed 11-May-05 11:07 AM by ken

The House of Lord's judgment in R v. Manchester City Council ex parte Stennett (2002) is available via the BAILLII website.

Thanks again!

Maybe I am missing it or being dozey - but I have read this case and cannot find anything to support the claim that clients receiving free residential care under s.117 are not receving free treatment for benefit purposes...

I am currently writing to the DWP to find out if the client had full entitlement to Income Support and this was paid to Social Services, or whether Income Support simply just paid out the hospital rate...I have argued that clients receiving free residential care under s.117 are not receving free treatment for benefit purposes...and so he should have received full Income support - I just wish i could pull out a quote from the case law - or something more solid to back up my arguement as believe the DWP will just fob me off!

Sam

(extremely grateful for all input)

Chapter and verse:

IS General Regs Sch 7 para 1 gives (gave) the method of reducing IS for a 'patient' as defined in reg 21.

Reg 21 (special cases) defines 'patient' as "a person ... who is regarded as receiving free inpatient treatment within the meaning of the Social Security (Hospital Inpatients) Regs 1975."

Reg 2(2) of said Inpatients Regs: "For the purposes of these Regulations, a person shall be regarded as receiving or having received free inpatient treatment for which he is or has been maintained free of charge while undergoing medical or other treatment as an inpatient ... in a hospital or similar institution under the National Health Service Act 1977."

There is further stuff in reg 2(2) about what being maintained free of charge means, and this is what may have confused the DM, if there ever was one in your case. What he/she may have missed is that the PLACEMENT must be made under the NHS Act before you consider the 'free of charge' issue.

QED.

Jim