Court rules on s.117 after-care services & PI damages

Notwithstanding double-recovery, the Council wasn't entitled to refuse to provide after-care services when an applicant was in receipt of a PI award.

Summary - Notwithstanding double-recovery, the Council wasn't entitled to refuse to provide after-care services when an applicant was in receipt of a PI award. 

In the case of Tinsley v Manchester City Council, the administrative Court looked at whether it was lawful for a Local Authority to refuse to provide Section 117 aftercare services under the Mental Health Act 1983 on the basis that the patient had been awarded personal injury damages the largest element of which was to meet his future care needs.

Case Summary
The claimant had suffered very serious head injuries in a road traffic accident on 26 May 1998 which left him with an organic personality disorder which, in turn, led him to be compulsory detained in hospital under Section 3 of the MHA.

After being discharged he spent time in a mental health nursing home funded by the relevant authorities under Section 117. In the meantime he brought proceedings against the driver involved in the accident who admitted a 90% liability for the accident.

The trial for the quantum of his claim came up before Leveson J (as he then was) and, in the judgment given on 18 February 2005 (Tinsley v Sarkar [2005] EWHC 192) he assessed those damages in the total sum approaching £3,500,000 of which £2,890,257 represented future care needs.

In the case the defence made the submission by the defendant that, because the relevant authorities were obliged to provide for the claimant's future care needs under Section 117, no award should be made against him for those costs, since they were not going to be incurred by the claimant himself.

Leveson J applied the 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 claimants were prepared to accept or even a care regime which he found to be reasonable.

He made his view clear that his instinctive feeling was that if he had accepted the defendant's submission he would have regarded the defendant's insurers as receiving an undeserved windfall.

Following the judgment the claimant left the nursing home funded by the relevant authority and, since then, the cost of his accommodation and aftercare services have been paid for by him (or, more accurately, by his deputy appointed by the Court of Protection to manage his property and affairs) from the damages he received in the personal injury action.

The deputy, at the time of the case, was of the view that the claimant was unable to sustain the cost of funding his existing care arrangement and since 2010 sought to require the defendant, as a relevant local social services authority, to comply with what the deputy contended was its statutory duty to provide social care as an aftercare service under Section117. The defendant's position prior to the hearing was that there was 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 and d id not consider itself to be under any duty to provide aftercare services under Section 117.

Therefore the fundamental issue in this case was whether the defendant local authority could lawfully refuse to provide aftercare services to the claimant under Section 117 on the basis that he has no need of such provision because the claimant was able to fund it himself from his personal injury damages.

The claimant rejected this argument on the basis that it was attempt by the claimant to undermine the decision in R v Manchester City Council x Stennet [2002] AC1127 where the House of Lords held in clear terms that the relevant authority providing aftercare services under Section 117 were not entitled to charge for those services.

The defendant local authority submitted three arguments in favour of the proposition that the local authority was entitled to refuse to provide aftercare services to the claimant.

1. From the true interpretation of section 117 the defendant was entitled to take into account, when deciding the question of need, the claimant's available funds represented by the personal injury damages. The defendant pleaded in aid the Court of Appeal case of Crofton v NHSLA [2007] [1WRN1993] though they did acknowledge that that decision concerned provisions of care costs under section 29 of the National Assistance Act 1948 rather than a decision under Section 117 of the Mental Health Act 1983 and therefore it was an unfair comparison.

2. The second most strongly advanced argument by the defendant was that for the claimant's deputy to advance a claim for double recovery would offend the law, fairness and common-sense and he should not be permitted by the Court to do so. The defendant pleaded in aid the case of Peters v East Midlands Strategic Health Authority [2010] QB48. 

3. The third argument of the Defendant followed from the second: in such circumstances, the Court should exercise its discretion under Section 31(2) of the Senior Courts Act 1981 to refuse to grant the claimant relief.

The judge rejected all three arguments in and found in favour of the claimant on the grounds outlined below.

1. Construction of Section 117 of the Mental Health Act 1983
The judge held that that was the House of Lord's decision in Stennet confirmed that Section 117 contained no express or implied power to charge for the provision of aftercare services. The  judge agreed with the Claimant that the decision in Crofton was not a decision under Section 117 of the Mental Health Act 1983 and therefore was not binding upon him. The judge noted material differences between the statutory provisions and the consideration in Crofton and Section 117 and particularly those in relation to means testing and express exclusion of personal injury damages from the financial assessment for that purpose, which are not found in Section 117.

He accepted the proposition of the claimant that the case of Stennet confirmed that provisions under Section 117 must be provided free of charge regardless of resources, and it would be anomalous if a claimant under Section 117 used his personal injury damages available to him could be in a worse position than the claimant under the statutory provisions where means testing was allowed but damages for personal injuries were excluded. 

2. Advancing a claim under Section 117 by the claimant's deputy offends against the law, fairness and common-sense should not be permitted.

The defendants relied on the case of Peters where it was held that it was reasonable for the claimant to prefer self-funding for provision at the public expense and also since the risk of double recovery by the claimant had been avoided she was entitled to recover the full cost of care from the defendant  Tortfeasor.

The defendant's submission was that the administrative Court could, in a claim for judicial review such as at present, dismiss the Claim on the grounds that a deputy in seeking to obtain double recovery was acting unlawfully and in breach of duty. In this case it was said on the basis of a misconceived understanding of what his duty involved.

The Claimant submitted that the defendant was wrongly seeking to elevate obiter observation of Dyson Lord Justice in Peters into a freestanding rule of law to achieve an impermissible aim which would seek to prevent a person otherwise entitled for making a claim under Section 117 to enforce his right to do so on the grounds that it would lead to double recovery, when that was a common law concept in relation to an assessment of damages, which had no application to claim for his statutory entitlement under Section 117.

The Claimant submitted that the ultimate remedy lay with parliament if it was ever considered that steps had to be taken to prevent a person in receipt of personal injury damages from making a suitable state funding application where that would produce double recovery.

The judge also considered it extremely difficult for the administrative Court to make any findings as to whether in an individual case the Deputy was or was not acting in breach of his or her duty to his or her client in making an application for Section 117 provision. The judge agreed.

3. Exercising a discretion to refuse relief

The judge found no separate basis for refusing relief as he found against the defendant on issue 2.
Therefore the judge made a declaration that the defendant may not have regard to the claimant's ability to fund the cost of aftercare services from damages awarded to him in his claim for personal injuries when determining whether or not to provide or arrange for the provision of aftercare services under Section 117 of the Mental Heath Act 1983.

Comment
We argue the case reasserts the proposition that it is incorrect in principle to argue that section 117 is a claim on the State's resources by the individual. Rather section 117 is better understood as statutory obligation placed on the State by the Mental Health Act. The deputy, on behalf of Mr Tinsley, was seeking to ensure the statutory services complied with their obligations.     

Case Details: Tinsley v Manchester City Council & Anor [2016] EWHC 2855 (Admin) (10 November 2016)