Zenith Personal Injury Current Awareness

​“AFTER CARE SERVICES” – WHEN IS A LOCAL AUTHORITY REQUIRED TO PROVIDE AFTER CARE SERVICES – S.3 MENTAL HEALTH ACT 1983

13 November 2017

Catherine Duffy


TINSLEY V MANCHESTER CITY COUNCIL & OTHERS [2017]EWCA Civ 1704

1.On 1st November 2017 this case came before the Court of Appeal.  The case was heard by the Master of the Rolls, Lord Justice Longmore and Lord Justice Irwin.

Appeal point

2.The question in the appeal:-

Is 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" entitled to require his local authority to provide such services at any time before he had exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor.

Facts

3.The claimant, Damien Tinsley was travelling on a bicycle when he was hit by a car in a road traffic accident on 26th May 1998 which left him with an organic personality disorder. This led to his being compulsorily detained in hospital under s.3. After being discharged pursuant to the decision of a Mental Health Tribunal he spent time in a mental health nursing home, funded by Manchester City Council under s.117 of the Act. In the meantime he had brought proceedings against the driver involved in the accident who admitted 90% liability for the accident. The trial of the quantum of his claim came on before Leveson J (as he then was) an, he assessed those damages in a total sum approaching £3.5 million, of which £2,890,257 represented future care.

4.Leveson J rejected a submission by the defendant, Mr Sarkar, that, because the relevant authorities were obliged to provide for the claimant's future care needs under s.117 of the Act, no award should be made against the defendant for the costs of such care, since they were not going to be incurred by the claimant himself. He held, applying Court of Appeal authority, that the relevant authorities were entitled to have regard, when deciding how the claimant's needs were to be met, to the resources available to them, and he concluded that they would not fund either a care regime which the claimant was prepared to accept (namely, accommodation at home) or even the care regime which the judge found to be reasonable. Mr Tinsley was therefore entitled to recover the reasonable cost of private care from Mr Sarkar.

5.Following that judgment the claimant left the nursing home funded by the authorities and since then the cost of his accommodation and after-care services was paid for by him from the damages received in the personal injury action. He first moved to a Transitional Rehabilitation Unit. He was discharged from there to short-term accommodation and later moved to a house in Blackley which he had purchased. He later moved to further houses in Trafford and Salford where he has lived since 2010.

6.In 2009 his current deputy was appointed, Mr Hugh Jones. Mr Jones, was of the view that the claimant was unable to sustain the cost of funding his existing care arrangements and sought to require Manchester City Council to comply with what he contended was its duty to provide social care as an after-care service under s.117.

7.The defendant’s position was that, since it had no reason to believe that the claimant could not continue to pay for his own care using funds derived from the damages he received for future care in the personal injury claim, it did not consider itself to be under any duty to provide after-care services under s.117. Mr Tinsley's position was that Manchester had always been obliged to provide him with appropriate after-care services. He sought an order that it do so in the future and that it pay him "damages" for failure to provide such services since 2005.

8.HHJ Stephen Davies (sitting in the High Court) decided to resolve the question, whether it was lawful for Manchester to refuse to provide after-care services on the basis that Mr Tinsley had no need for such provision because he could fund it himself from his personal injury damages, as a preliminary issue. He decided it was unlawful and gave permission to appeal.

Law

9.Section 117 of the 1983 Act (as currently in force) provides:-

"(1) This section applies to persons who are detained under section 3 above … and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.

(2) It shall be the duty of the clinical commissioning group ["CCG", previously the Primary Care Trust, "PCT"]… and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the clinical commissioning group or … and the local social services authority are satisfied that the person concerned is no longer in need of such services …

(6) In this section, "after-care services", in relation to a person, means services which have both of the following purposes –

(a) meeting a need arising from or related to the person's mental disorder; and

(b) reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder)."

10.Section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") (as currently in force) provides:-

"47 Assessment of needs for community care services

1) Subject to subsection (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision [of services under section 117 of the Mental Health Act 1983 …] may be in need of any such services, the authority-

a) shall carry out an assessment of his needs for those services; and

b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

Submissions

11.Ms Jenni Richards QC for Mr Tinsley submitted successfully that Manchester's refusal to provide after-care services unless it was satisfied that the damages awarded had run out, was unlawful. Mr Harrop-Griffiths submitted on behalf of Manchester City Council (1) that on the true construction of s.117 of the 1983 Act, Manchester was not obliged to provide after-care services if the claimant had been awarded damages for future care and (2) that to allow such a claim would offend against the principle against double recovery.

Construction of s117 of the Mental Health Act 1983

12.Manchester submitted that an obligation imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act did not require it to provide services if a claimant has funds available for that purpose provided by a tortfeasor. Manchester accepted that the fact that a claimant was personally wealthy would not justify a refusal to provide the services; however the fact that money has become available from the tortfeasor made all the difference.

13.The Court of Appeal stated this was an “impossible argument, and stated that a refusal to pay for such services could be equated to providing such services but charging for them. The House of Lords had previously made it clear in R v Manchester City Council ex parte Stennett [2002] 2 AC 1127 that charging persons such as the claimant was impermissible.

Public Interest

14.The Defendant submitted that Ms Richards' construction of section 117 of the 1983 Act would be adverse to the public interest and would not further the ends of justice because it would lead to potential double recovery by the claimant and unnecessary depletion of (or prejudice to) scarce public funds.

15.Longmore LJ stated that he did not consider it to be immoral to claim a benefit to which Parliament had made clear Mr Tinsley is entitled. This was especially the case if Parliament had already made clear that funds administered by the Court of Protection are to be specifically disregarded in respect of claimants who are entitled to make claims pursuant to Acts other than the 1983 Act. Further there was no suggestion that Mr Tinsley did not genuinely believe, at the time his case was before Leveson J, that he would access private care rather than state care.

Double Recovery

16.Longmore LJ stated that that courts will seek to avoid double recovery. 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. However 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.

17.Manchester City Council submited that Mr Tinsley's deputy had no duty to make a claim on Mr Tinsley's behalf and therefore should not do so until the funds from the award were about to run out.

18.Longmore LJ stated that  if it is the law that a section 117 claimant can only claim against a local authority for after-care services once any award for such services against a tortfeasor has been (or is about to be) exhausted, it is for the Administrative Court to say so. “For the reasons I have given I do not believe that is the law.”

19.The appeal was dismissed.

Summary

A person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released but still requires "after-care services" IS entitled to require his local authority to provide such services, even if he has NOT exhausted sums awarded to him in a judgment against the negligent tortfeasor.

Please see link:- http://www.bailii.org/cgibin/format.cgi-doc=/ew/ca...

Current Awareness

By the Personal Injury team