R (M) v LB Hammersmith & Fulham and LB Sutton; R (Hertfordshire County Council) v LB Hammersmith and Fulham
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 03 March 2010 |
| Neutral Citation | [2010] EWHC 562 (Admin) |
| Docket Number | CO/126/2009 CO/3390/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 March 2010 |
[2010] EWHC 562 (Admin)
Before: Mr Justice Mitting
CO/126/2009 CO/3390/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr T Fisher (instructed by Messrs John D Sellars & Co solicitors) appeared on behalf of JM
Mr P Green and Ms K Donnelly (instructed by Hertfordshire County Council) appeared on behalf of Hertfordshire County Council
Ms Fenella Morris (instructed by London Borough of Hammersmith and Fulham) appeared on behalf of the 1st Defendant
Ms G Ward and Mr J Dove (instructed by the London Borough of Sutton) appeared on behalf of the 2nd Defendant
: This case concerns which local authority is responsible for meeting the accommodation costs of an individual detained under section 3 of the Mental Health Act 1983 who is then discharged back into the community. In one case the issue is live. I will deal with the factual circumstances of that case in a moment. In the other, between Hertfordshire and London Borough of Hammersmith and Fulham, it is no longer live but the question of principle remains of interest to both authorities.
The case in which the issue is live concerns a 61 year old man identified in these proceedings as JM. As a result of long term alcohol abuse he suffers from significant cognitive impairment and a disorder diagnosed as Korsakoff's psychosis. He is of Irish origin but for the 15 years between 1991 and 2006 lived in the London Borough of Hammersmith and Fulham in a one bedroomed council owned flat.
Unsurprisingly in the light of his condition, for most of those years he had regular interaction with the Hammersmith and Fulham social care services. On 24th December 2006, he was involved in a serious road traffic accident and was hospitalised for three months. On discharge, he was provided with accommodation in a residential care home in Hammersmith and Fulham but the staff were unable to cope with him and his placement failed. He was then transferred to a wet hostel within the borough where he was involved in two more road accidents. That placement, too, failed.
On 31st July 2007, he was transferred to a house known as Ronau House in the London Borough of Sutton. He stayed there until 22nd January 2008, apart from two episodes when he left the house for a short period. During one of them, in September 2007, he returned to Hammersmith and slept rough. Meanwhile, and only eight days after his transfer to Ronau House, on the advice and with the support of his family, he signed a notice terminating his tenancy with the London Borough of Hammersmith and Fulham.
There is no evidence about his mental capacity to make a decision of that nature or about the advice or the reasons for it given to him by his family. There is no evidence, in short, upon which I could conclude that that was anything other than the voluntary act of a man with capacity to perform the act, albeit a capacity which was for many other purposes impaired.
On 22nd January 2008, JM was admitted to Sutton Hospital, a mental hospital, under section 2 of the Mental Health Act 1983, that is to say for assessment. The period of compulsory detention under that section cannot exceed 28 days. He remained in the hospital until 29th February 2008, a little over the 28 day period. The last week or so of his stay must therefore have been voluntary.
Meanwhile, those who then had the responsibility for his care, the Hammersmith and Fulham social services workers, and the operators of Ronau House, decided that it was not an appropriate placement for him. He was nevertheless discharged there from Sutton hospital. He was said to be in an uncertain frame of mind about where he should then go, having stated that he wished to return to his roots in Ireland. An alternative proposition was that a place would be found for him by Hammersmith and Fulham.
On 10th April 2008, he was readmitted to Sutton Hospital under section 3 of the Mental Health Act 1983, that is to say for treatment. The maximum period of compulsory detention under that section is six months. By 28th October 2008, his consultant psychiatrists considered that he was reaching a stage when his discharge from hospital could take place. He apparently expressed the wish to return to Hammersmith and Fulham. Not long after that, a dispute broke out between Hammersmith and Fulham and Sutton as to which authority was responsible for providing him with accommodation and services. That appears to have delayed his discharge.
On 23rd March 2009, he was discharged from Sutton Hospital to Kenilworth House in the London Borough of Ealing, where he now resides. I am told by Mr Fisher, who appears for him, that his placement at Kenilworth House has been successful and he is content to live there.
I now turn to the statutory schemes which govern responsibility for providing him with accommodation and services. At the point at which he was first transferred to Ronau House, it is common ground that Hammersmith and Fulham owed to him a duty under section 21 of the National Assistance Act 1948. That section provides:
“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-
(a) residential accommodation for persons [aged eighteen or over] who by reason of age, [illness, disability] or any other circumstances are in need of care and attention which is not otherwise available to them…”
Section 24 identifies the persons in respect of whom that power may be exercised:
“(1) The local authority empowered under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.”
What is a power in section 21 was in 1993 converted into a duty by dint of directions given by the Secretary of State under section 21. Paragraph 2(3) of the direction provided:
“… the Secretary of State hereby directs local authorities to make arrangements under section 12(1)(a) of the Act to provide accommodation-
(a) in relation to persons who are or have been suffering from mental disorder…
for persons who are ordinarily resident in their area and for persons with no settled residence who are in the authority's area.”
The duty which Hammersmith and Fulham accept they were under in relation to JM continued during his placement at Ronau House. It did so by virtue of a deeming provision in section 24(5) of the 1948 Act:
“Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him.”
It is also common ground that that position was not disturbed by his admission on 22nd January 2008 under section 2 of the 1983 Act or, following his discharge from Sutton Hospital on 29th February 2008, during his resumed stay at Ronau House.
Ms Morris, for Hammersmith and Fulham, contends, however, that the position changed when he was admitted to Sutton Hospital. It changed because, she submits, the duty under section 21 thereupon ceased. Section 21(1)(a), as expanded by the Secretary of State's directions, only applies to individuals who by reason of age, illness, disability or any other circumstances are in need of care and attention “which is not otherwise available to them”. Ms Morris' proposition is in my judgment unquestionably right. It has not been disputed by any other party to these proceedings.
A different statutory obligation arose when the time came for JM to be discharged from Sutton Hospital after his admission under section 3 of the 1983 Act. Section 117, whose ancestry can be traced back to the Mental Health (Amendment) Act of 1982, provides:
“(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 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 Primary Care Trust … and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust … and the local social services authority are satisfied that the person concerned is no longer in need of such services…”
Subsection (3) identifies the local social services authority as “the local social services authority, for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained”.
Section 117 accordingly applies to a number of categories of compulsorily detained patients: those admitted under section 3; those admitted compulsorily following a criminal case; those transferred from within the prison estate.
The effect of section 117 was considered by Scott Baker J, as he then was, in R v Mental Health...
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