TINSLEY V MANCHESTER CITY COUNCIL
& OTHERS 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.
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.
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.
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.
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.
9.Section 117 of the 1983 Act (as currently in force)
"(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
(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)
"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."
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
Construction of s117 of the Mental Health Act 1983
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  2 AC 1127 that
charging persons such as the claimant was impermissible.
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.
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.
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.
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.
see link:- http://www.bailii.org/cgibin/format.cgi-doc=/ew/ca...