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)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Irwin,Master of the Rolls |
| Judgment Date | 01 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1704 |
| Docket Number | Case No: C1/2016/4491,C1/2016/4491 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 2017 |
[2017] EWCA Civ 1704
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (AT MANCHESTER)
HIS HONOUR JUDGE STEPHEN DAVIES (Sitting as a judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
The Right Honourable Lord Justice Longmore
and
The Right Honourable Lord Justice Irwin
Case No: C1/2016/4491
— and —
— and —
Mr Hilton Harrop-Griffiths (instructed by City Solicitor, Manchester City Council) for the Appellant
Ms Jenni Richards QC & Mr Adam Fullwood (instructed by Hugh Jones Solicitors, Manchester) for the Respondent
The Interested Party did not attend and was not represented
Mr Stephen Knafler QC who made written submission on behalf of The Intervener
Hearing date: 10 th October 2017
Introduction
The question in this appeal is 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 claimant, Damien Tinsley, was travelling on a bicycle when he was hit by a car in a road traffic accident on 26 th May 1998 which left him with an organic personality disorder which in turn 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, Harnham House, funded by Manchester City Council ("Manchester") 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) and, in a judgment given on 18 th 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.
In so doing 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.
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 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. He first moved to a Transitional Rehabilitation Unit in Haydock where he remained until June 2006. He was discharged from there to short-term accommodation and then moved to a house in Blackley which he had himself purchased. He later moved to further houses in Trafford and Salford where he has lived since 2010.
In 2009 his current deputy was appointed after concerns that his previous deputy had mismanaged his financial affairs. The current deputy, Mr Hugh Jones, 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 Manchester 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 s.117. 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 which 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 s.117. Mr Tinsley's position is that Manchester has 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. 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.
Outline of the Law
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)."
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."
In the case of R v Manchester City Council ex parte Stennett [2002] 2 AC 1127 the House of Lords held in clear terms that relevant authorities providing after-care services under s.117 were not entitled to charge for those services. Lord Steyn (with whom Lords Slynn, Mackay, Hutton and Millett agreed) held that this was so as a matter of construction of s.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. Lord Steyn agreed with Buxton LJ who had observed in this court that "it would be surprising, rather than the reverse, if they [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 st 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 thus 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.
The submissions
Ms Jenni Richards QC for Mr Tinsley submitted successfully below, that Manchester's refusal to provide after-care services unless it was satisfied that the damages awarded had run out, was unlawful in the light of Stennett's construction of the 1983 Act. Mr Harrop-Griffiths submitted below and in this court (1) that on the true construction of s.117 of the...
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