Mental health after-care

November 2nd, 2017

The question in Tinsley v Manchester City Council [2017] EWCA Civ 1704 was whether a person who has been compulsorily detained in a hospital for mental disorder under Section 3 of the Mental Health Act 1983 (“the 1983 Act”) and has then been released from detention but still requires “after-care services” is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor.  The Court of Appeal held that he is so entitled.  It is not the law that a Section 117 claimant can claim against a local authority for after-care services only once any award for such services against a tortfeasor has been, or is about to be, exhausted.

In R v Manchester City Council ex parte Stennett [2002] 2 AC 1127 the House of Lords held that relevant authorities providing after-care services under Section 117 of the 1983 Act were not entitled to charge for those services.  This was so as a matter of construction of Section 117. They rejected an argument that it produced an anomalous result when the position of such a person was compared with someone who had been admitted informally to hospital and then discharged, who could – subject to a means assessment – be charged for such services in respect of accommodation pursuant to Section 22 of the National Assistance Act 1948, and said it would be surprising, rather than the reverse, if the claimants were required to pay for what is essentially a health-related form of care and treatment.

There is no evidence that the claimants in Stennett were in receipt of awards of damages for personal injury which would lead to them, for that reason, being able to finance their own requirements for after-services. The current position on that (as it has been since 1 April 1993 at any rate in relation to residential accommodation) is that an individual’s capital may in general be considered to be available for charging purposes pursuant to the Care Act 2014 and Regulation 18 of the Care and Support (Charging Assessment of Resources) Regulations 2014 (SI 2014/2672) subject to the disregards contained in Schedule 2 to the Regulations. Those disregards include:-

i)  capital contained in any trust fund established to administer sums received for personal injury (para 15);

ii)  payment made in consequence of a personal injury, except a payment specifically identified by a court to deal with the cost of providing care (para 16); and

iii)   any sum administered on behalf of a person by the Court of Protection derived from an award of damages for personal injury (para 25).

The second and third of those disregards would be applicable to the award of damages if Mr Tinsley had had to rely on the provisions of the Care Act 2014 rather than Section 117 of the 1983 Act.
On the construction of Section 117 of the 1983 Act, the City Council submitted that the mere fact that an obligation is imposed on it by Section 117 to provide after-care services to persons compulsorily detained pursuant to Section 3 of the 1983 Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose provided by a tortfeasor. The City Council accepted that the fact that a claimant is personally wealthy would not justify a refusal to provide the services. It was the fact that money has become available from the tortfeasor that is said to make all the difference.  Longmore LJ, at paragraph 12, described this as an impossible argument. A refusal to pay for such services was 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. The City Council was effectively seeking, in the teeth of the express obligation to provide Section 117 services, to recover by the back door what it cannot recover by the front.  The City Council’s argument apparently extended to cases where funds were provided for after-care by any third party, not just by a tortfeasor. But to deny the right to after-care services in cases where funds have been provided by voluntary donation would be “against all reason”. Nor did the City Council’s argument cater for a situation where a case settles (with or without a discount for contributory negligence) for a global unapportioned sum – as happens with great frequency.

Longmore LJ further said:-

“26. It is, of course, the case that courts will seek to avoid double recovery by a claimant at the time they assess damages against a negligent tortfeasor. If therefore it is clear at trial that a claimant will seek to rely on a local authority’s provision of after-care services, he will not be able to recover the cost of providing such after-care services from the tortfeasor. … It does not follow from this that, if a claimant is awarded damages for his after-care he is thereafter precluded from making application to the local authority. … It seems to be Manchester’s position that they need to be satisfied that Mr Tinsley’s funds have indeed run out (or are about to run out). …”

“34. One understands that local authorities are concerned about the potential implications of the Administrative Court’s decision especially since Schedule 4 to the Care Act 2014 applies sections 31 and 32 of that Act to the provision of after-care services, so that direct payments can be made instead, to those who have capacity to ask for them and to an authorised person on their behalf if they do not. That concern may, however, be overstated. Few claimants who have been awarded the costs of private care will voluntarily seek local authority care while the funds for private care still exist. If they ask for direct payments, the provisions of the Care Act will have to be considered. Any argument about such provisions is for another day.”

The Master of the Rolls and Irwin LJ agreed.

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