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TX: 07.08.03 – MENTALLY ILL PEOPLE OWED £30 MILLION AFTER BEING WRONGLY CHARGED FOR CARE
PRESENTER: CAROLYN ATKINSON


ATKINSON
According to one estimate around 20,000 mentally ill people or their families are owed at least £30 million after being wrongly charged for residential care by their local councils. Those affected are patients who've been sectioned under the Mental Health Act and then released into residential aftercare under what is known as Section 117 of the Act. Families have paid for that care but they shouldn't have done. How do we know this? Well a High Court ruling in 1999 said charging families was illegal. Some councils tried to overturn that finding but the Law Lords rejected their appeal in 2001. Then two years later the local government ombudsman took the unusual step of investigating this problem and last month published a report saying local authorities had run out of excuses for not paying for this vital care.

Well Craig Wilson from near Middlesbrough is battling to reclaim money on behalf of his mother who's now died. She was moved from a psychiatric hospital into residential aftercare and paid fees for two years.

WILSON
Once she was in the nursing home we had to pay fees of about £1200 a month, they were raised to about £1300 a month by the time my mum finally died.

ATKINSON
Now we now know that in fact the local authority should not have been charging your mother and you've now been embroiled in the battle to try and get round about £30,000 back from the local authority, what have you managed so far?

WILSON
Well in about August 1999 we received a month's nursing home fees back from the council. And at Christmas of this year we received an interim payment from the council but we're still awaiting the bulk of the repayment. They're now arguing about the rate of interest they have to pay on the fees that were mischarged.

ATKINSON
It sounds from your point of view that it's been a very long and protracted and very stressful experience, especially as during all of this you were also in a period of bereavement?

WILSON
Well the whole experience of my mum being ill and us having to pay fees, then fights to get the wrongly charged fees back, it's dominated my life I'd say for about six years actually. And the thing is I can never get that time back, that time my mum was ill, she's gone now, but I can't get it back and while she was ill I couldn't devote my whole energy to looking after her and visiting her because it was always clouded with this battle, if you like, between myself and the local authority. I wanted to think about my mother rather than about a legal sort of case, you know.

ATKINSON
How does that make you feel?

WILSON
Well it makes me feel very frustrated because they've paid some of the money back but not all the money and I think it's rather like me going into a house and pinching the television and washing machine and then saying well I'll give you the television back but I'll keep the washing machine for a bit longer, then maybe give you that back in a couple of years time. And I just feel that they're dictating the timetable at which they're making the repayment instead of basically fulfilling the law and refunding the money, it was after all unlawfully charged.

ATKINSON
That's Craig Wilson who's trying to get back £30,000. Well in the last couple of days we've rung 10 local authorities, all were aware of this issue yet only one actually had a strategy for dealing with the problem - that was Herefordshire. They couldn't supply any details to us though. Essex told us they had established how many people are entitled to repayment - that was round about 450 - and they said they would fund that from an underspend. Liverpool is doing nothing until the Government comes up with national guidelines. So why are so many councils refusing to get on with it and pay what these people are rightfully owed? Well here in the studio we have Jenny Goodall from the Association of Directors of Social Services and Rowena Daw from the mental health charity MIND. Jenny first of all, you represent the social services bosses who were wrongly taking the money from people who were mentally ill or their families in residential care, do you now finally accept that that money is definitely owed?

GOODALL
We now see that the - from the ombudsman's report - that we do have to repay that money. I think it's not quite fair to say that we were just taking the money from people, they were genuinely - the law was very complex and we've really been waiting for this clarification, which we're grateful now to have.

ATKINSON
But you say waiting for clarification, a lot of people would say you've been dragging your feet, you've been sort of using the legal process and if we look at the survey we did even now three years down the line a lot of councils, although they've heard of it, don't really have a strategy in place.

GOODALL
Well I think most councils have been waiting for the outcome of the legal proceedings and also waiting for the report from the ombudsman - we've only had that report in the last two weeks - so I don't think it's fair to say that we've been dragging our feet. As councils we have a duty to protect public money and we have to be sure that we are acting legally and I think the ombudsman's report acknowledges that the law was extremely unclear on this point.

ATKINSON
The key question is obviously where is all this money coming from and the councils are worried, they're saying perhaps budgets have to be increased, council tax might have to go up or existing social services budgets would have to be cut. Is that something you're talking to your members about?

GOODALL
We certainly are. We're certainly trying to estimate how many people are likely to be affected and the amounts of money that are involved and at the moment I think those estimates are fairly crude at the moment because we really don't know how many people that we're talking about but it is an issue as to where that money is going to come from - it could be a million pounds for each council potentially and that money isn't just waiting there in the bank to be used, it may have an effect on current services.

ATKINSON
The other problem we have - we heard Craig Wilson there in Middlesbrough saying he's waiting for his final payment but this is all being delayed again for him because of a row of how much interest should be paid. Do you accept - I mean we've got the ombudsman's report, we've got it here, it's a very hefty black and white document, they're saying the county court rate is what you should pay and that's round about 8% at the moment.

GOODALL
Well it's not clear to me why the ombudsman is saying that. They seem to be saying that because that's the rate they usually use and the county court rate is a fairly high rate and it includes in it some form of incentive to people to get on and pay for it. So I think again we're taking advice on that from our legal representatives.

ATKINSON
Okay, for a moment thank you Jenny Goodall. Rowena Daw from the mental health charity MIND, they have a point don't they - if you take the money to give to these people, you're taking it away from someone else and probably a social services budget in some cases?

DAW
Well I guess you can understand that I can't really take it from that point of view. From the point of view where we see it there was a legal duty, the legal duty in fact was made fairly clear in the mid 1990s, after an ombudsman's report, 1995 I think it was, the Department of Health rather tardily - and I think the Department of Health needs to look to their own behaviour in this - in this regard - managed by 1998 to say something and some councils from very early on did do the right thing.

ATKINSON
But we're talking about an awful lot of money which has got to come from somewhere.

DAW
Well I'm afraid the councils and the government will have to sort it out. It is just a simple matter of a legal wrong that was made and like any other, whether it's a commercial case, any other kind of case, it has to be made up.

ATKINSON
Okay Rowena Daw from MIND thank you. We have a statement from the Department of Health, they say this is a matter for local authorities to resolve locally but they say the department will keep on talking to social service directors. Well some councils have gone some way down the road of repaying some people. Wiltshire County Council, for example, was the first to have a complaint against it upheld. Its director of social services, Dr Ray Jones, says repayments there have been in full swing for two years.

JONES
We have identified 64 people that we need to repay who had been making payments between 1996 and 1998. The total payments we think we have to make are 682,000 - that includes £124,000 worth of interest. So far we've traced 31 clients and have repaid 228,000.

ATKINSON
Now a lot of councils who now find themselves in the position that you have now gone through will be looking to you to see how you did it. The wording from the ombudsman is people have got to be proactive about this, the councils can't just sit back and wait for people to come to them, so how did you go about it, how were you proactive?

JONES
Well we were proactive in a sense that we appointed someone to spend six to nine months going back through all our records to 1996 trying to identify people who'd paid towards their services. We went to all our mental health teams, went back through their caseloads, tried to identify people. We got a lot of information out of a lot of publicity through local papers, local radio including the BBC and we also contacted voluntary organisations that represent mental health service users and got them also to publicise that we were seeking to make repayments.

ATKINSON
Now when it comes to how much you pay and at what interest rate this is obviously a big problem for the councils going through this at the moment because there is a little bit of a row going on about what the rate should be, how did you solve that problem?

JONES
Well when we started to make repayments, which was two years ago, we had no guidance at all and what happened within Wiltshire we took some legal advice from a barrister and the view that was taken was that we should pay a rate of interest similar to the rate the county council was paying when it was borrowing money itself and the so-called seven day rate of interest that the local authority was paying. That's higher than the retail price index and that was the rate that we've been paying at.

ATKINSON
Would you be prepared to help other councils who are finding themselves in this position that you've already gone through?

JONES
Well we gave advice to the ombudsman before this report came out two weeks ago about what action we'd taken in Wiltshire, that clearly has informed the advice coming from the ombudsman, we're happy to share our experience with others.

ATKINSON
Now in terms of where that money came from in Wiltshire - it came out of the reserve fund and that is now being topped up again by a slight rise in the council tax but it just works out about 1 pence per person, so Rowena Daw from MIND that's not a lot, is it, that's an affordable amount to be able to make these repayments?

DAW
Well I'm not an expert on these issues but it sounds to me as though it is and the issue just has to be resolved.

ATKINSON
Okay and Jenny Goodall from the Association of Directors of Social Services, do you feel that we now - perhaps listening to what Wiltshire have done - that it is a way - it is something that can be solved and you've really got to put a lot of pressure on the councils to sort it out very quickly?

GOODALL
I think each council will have to make their own decisions but the financial liability will vary and may not be the same as what you've heard from Wiltshire.

ATKINSON
Okay Jenny Goodall from the Association of Directors of Social Services and Rowena Daw from MIND thank you very much indeed.

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