Damien Tinsley (by his litigation friend and property and affairs deputy Hugh Jones) v Manchester City Council
| Jurisdiction | England & Wales |
| Judge | HHJ Stephen Davies |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWHC 2855 (Admin) |
| Docket Number | CO/2129/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 2016 |
Neutral Citation: [2016] EWHC 2855 (Admin)
Court and Reference: Administrative Court
Judge: HHJ Stephen Davies (sitting as a High Court Judge)
CO/2129/2016
Appearances: J Richards QC & A Fullwood (instructed by Hugh Jones Solicitors) for DT; H Harrop-Griffiths and R Hadden (instructed by City Solicitor, Manchester City Council) for the Council; the interested party, South Manchester Clinical Commissioning Group, did not attend and was not represented.
Facts: DT received serious head injuries in a motor vehicle crash; they caused an organic personality disorder, which led to his admission under s3 Mental Health Act 1983; he was discharged from this to a nursing home, the costs of which were originally met by the local authority under s117 of the 1983 Act. He received significant damages against the car driver, most of which was for future care and made on the basis that the regime DT would accept and which was reasonable would not be provided under s117. Accordingly, he moved to a different nursing home and his care was funded from the damages paid, arranged by a deputy appointed by the Court of Protection to look after his financial affairs. A fresh deputy was appointed, took the view that the regime being funded was unsustainable and sought funding under s117, which the local authority declined to provide in light of the damages award. The lawfulness of the position of the local authority was challenged, and an order was sought that the local authority take over funding and pay damages for past payments made.
1. Under s117 of the Mental Health Act 1983 a person who has been compulsorily detained in a hospital for medical treatment for mental disorder under s3 of that Act is entitled, upon ceasing to be detained and leaving the hospital, to be provided with after-care services by the relevant authorities, being the responsible clinical commissioning body and the local social services authority, until such time as they are satisfied that he is no longer in need of such services.
2. In the case of R v Manchester City Council ex p Stennett [2002] 2 AC 1127, [2002] MHLR 377 the House of Lords held in clear terms that relevant authorities providing after-care services under s117 were not entitled to charge for those services. Lord Steyn held that this was so as a matter of construction of s117. He 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 would – subject to a means assessment — be charged for such services. He agreed with Buxton LJ who had observed below that “it would be surprising, rather than the reverse, if they were required to pay for what is essentially a health-related form of care and treatment”.
3. In this case the claimant 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 to his being compulsorily detained in hospital under s3. After being discharged he spent time in a mental health nursing home funded by the relevant authorities under s117. In the meantime he 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) and, in a judgment given on 18 February 2005, Tinsley v Sarkar [2005] EWHC 192, he assessed those damages in a total sum approaching £3.5 million, of which £2,890,257 represented future care.
4. In so doing Leveson J rejected a submission by the defendant in that case that because the relevant authorities were obliged to provide for the claimant's future care needs under s117 no award should be made against him for those costs, since they were not going to be incurred by the claimant himself. He held [110], 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 [126] that they would not fund either a care regime which the claimant was prepared to accept or even the care regime which he had found to be reasonable. He made [129] his view clear that his instinctive feeling was that if he had accepted the defendant's submission he would have regarded his insurers as receiving an undeserved windfall.
5. Following that judgment the claimant left the nursing home funded by the relevant authorities and since then the cost of his accommodation and after-care services has 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 received in the personal injury action.
6. In 2009 his current deputy was appointed in circumstances where there were concerns that his previous deputy had mismanaged his financial affairs. The current deputy is of the view that the claimant is unable to sustain the cost of funding his existing care arrangements and has, since 2010, sought to require the defendant as the relevant local social services authority to comply with what he contends is its duty to provide social care as an after-care service under s117. Although there have been protracted discussions, the defendant's final communicated position has been that since it has no reason to believe that the claimant cannot continue to pay for his own care using funds derived from the damages he received for future care in the personal injury claim it does not consider itself to be under any duty to provide after-care services under s117.
7. Thus there is a fundamental issue between the parties which they require the court to resolve, which is whether or not it is lawful for the defendant to refuse to provide after-care services to the claimant under s117 on the basis that he has no need of such provision because he is able to fund it himself from his personal injury damages. The claimant's position is that this is unlawful, and represents a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords has confirmed in Stennett that it is impermissible to do so in any circumstances. The defendant's position is that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s117 would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA [2007] 1 WLR 923 and Peters v E Midlands Strategic Health Authority [2010] QB 48.
8. HHJ Raynor QC, sitting as a Judge of the High Court, ordered that this case should be heard as a rolled-up hearing. At the hearing before me the parties were agreed that I should determine this fundamental issue...
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Damien Tinsley (by His Litigation Friend and Property and Affairs Deputy Hugh Jones) v Manchester City Council South Manchester Clinical Commissioning Group (Interested party) Local Government Association (Intervener)
...QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (AT MANCHESTER) HIS HONOUR JUDGE STEPHEN DAVIES (Sitting as a judge of the High Court) [2016] EWHC 2855 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL The Master of the Rolls The Right Honourable Lord Justice Longmore and The Right Honou......