Councils could pay back care charges

MILLIONS of pounds of taxpayers money may have to be paid out to mental health patients in Essex and Suffolk who have been wrongly charged for vital residential care for almost 10 years.

Both Essex and Suffolk county councils have been accused of "blunders" in ignoring advice from the Government after it emerged they have set aside a combined total of more than £2million to cover an anticipated deluge of claims from patients.

Although many patients were forced to sell their homes to pay for care they were entitled to receive free of charge, some might never recoup a penny after a decision not "advertise" council liabilities.

The special provisions made in the county councils' accounts - £1.3million for Essex and £950,000 for Suffolk – come after a lengthy court battle over the legality of charging for residential mental health aftercare.

Section 117 of the 1983 Mental Health Act requires health and social services authorities to provide aftercare treatment to anyone detained – or "sectioned" – in hospital or prison and then released.

For years Essex and Suffolk, along with most other county councils, charged "care in the community" patients for their accommodation.

But following a 1994 Department of Health advice note stating aftercare services were not chargeable, a number of councils stopped the practice.

However, Essex and Suffolk continued to do so and in 1999, four other councils - faced with the prospect of having to repay around £50million – argued a test case in the High Court, which ruled against the authorities.

In February 2000, the Government issued another circular telling councils to stop charging and this decision was reinforced by the Court of Appeal five months later and finally by the House of Lords in July 2002.

Although Essex County Council stopped charging its patients after receiving legal advice in late 2000, it now expects to have to repay £1.3million in claims dating back to 1993.

It has made those patients still under its care the top priority in handling claims, but is refusing to "advertise" any liabilities it has to the estates of patients who have died since the legal rulings.

Jill Martin, legal adviser to the Public Guardianship Office, which is part of the Department for Constitutional Affairs, said: "Although it is understandable that authorities were charging in the early years following the 1983 Act because there was a lack of guidance, later on councils repeatedly ignored Government advice and just tried to fob off their responsibilities.

"These blunders cost people dearly not only in terms of finance with many having to sell their homes to pay their bills - which could have clocked up £50,000 for a single patient – but also in terms of the added stress."

But a spokesman for Essex County Council said: "There has been no blunder by the county council or any other authority on this. We, and other authorities, were working within the legislation as it was then interpreted.

"The House of Lords ruling revisited the existing legal framework which necessitated changes of practice which have been embraced by Essex County Council.

"In other words, we acted previously as per the law as it was interpreted at the time by everyone, and have acted accordingly as soon as the House of Lords ruling was passed."

The spokesman said he could not divulge how many claims the council was expecting, but added:

"We do not think the council is under a duty to advertise its liability to encourage the estates of those who have since died to come forward.

"But should claims be made, they would need to be considered on a case by case basis."

A spokesman for Suffolk County Council said the situation was the same as in Essex and added: "Charging was made until the law was made clear. We have a record of all the affected clients and how much is owed in respect of each case.

"The provision also allows for these clients to be repaid, with interest."