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Case Study: How we Won the Right for a Client to Choose a Care Home for her Husband Under Section 117 Without Having to Pay Top up Fees

Community Care Law


How Victoria Crick, expert Community Care lawyer based in our Brighton office, advised a client about her husband’s entitlement to Section 117 Aftercare funding to pay for a suitable care home placement without a top up payment.

The situation

Graham, aged 76, had been detained in psychiatric hospital under Section 3 of the Mental Health Act (1983) as a result of challenging behaviour caused by advanced stage Alzheimer’s disease. Health and Social Services accepted that they had a duty to fully fund Graham’s aftercare, under Section 117 of the Mental Health Act (MHA).

Social Services arranged for Graham to move to a care home that accepted Local Authority funding rates and which stated they could meet his needs. The care home failed to notice a rapid decline in Graham’s health and he was readmitted to hospital after only a few days.

When it was time to consider discharge planning again, Graham’s wife Denise argued that the original care home was unsuitable. She identified a suitable care home that was close to the marital home in South Wales. This meant that she could visit Graham daily, which was important for his wellbeing. The cost of the new care home was £173 per week more than the original care home.

Social Services refused to consider the care home that Denise suggested. They told her that because Graham was entitled to free Aftercare, she did not have any choice about the care home. Social Services acknowledged that Graham lacked mental capacity to decide where he should be cared for and that a best interest decision making process was required.

However, they did not invite Denise to participate in this legal process.

What Martin Searle Solicitors did

Denise contacted us because she was worried that Social Services would move Graham to another unsuitable care home, possibly one that was too far away for her to visit daily. Victoria provided advice to Denise so that she could argue that Graham had a need, and not a preference, to move to the new care home. Victoria explained to Denise that Social Services have a legal duty to meet needs under the Care Act (2014) and under the MHA, but do not have a duty to meet preferences.

Victoria also advised Denise that Social Services were wrong to tell her that Graham’s right to free Aftercare meant that neither Graham nor Denise had any choice about his placement, and that there was a legal duty to involve her in the best interest decision-making process, so she could advocate Graham’s wishes and feelings.

Using Victoria’s advice, Denise persuaded Social Services that the care home she had identified was suitable to meet Graham’s needs and that it was the least restrictive option in his best interests.

Social Services told Denise that although Graham’s Aftercare was free under Section 117, she would have to pay a Top Up of £173 per week, because the care home cost more than the local authority rate.

The result

Victoria advised Denise that a Top Up would be unlawful, because there was no alternative suitable placement available to meet Graham’s specific needs at the Local Authority rate. Denise used Victoria’s advice and draft wording to put forward further arguments to protect Graham’s health and social care legal rights.

Social Services backed down and accepted that the only safe and appropriate discharge placement for Graham was the care home that Denise had identified. Social Services also conceded that they could not lawfully charge a Top Up, which would have cost Graham almost £9,000 per year if Denise had not challenged it.

Graham is now very well settled in the care home that Denise suggested, which is meeting all of his needs, and Denise can visit him every day.

For expert advice on Section 117 Aftercare funding, contact our Community Care Law Team on 01273 609911, or email

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991

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