R (M) v LB Hammersmith & Fulham and LB Sutton; R (Hertfordshire County Council) v LB Hammersmith and Fulham
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE RIMER,LORD JUSTICE SULLIVAN |
| Judgment Date | 15 February 2011 |
| Neutral Citation | [2011] EWCA Civ 77 |
| Docket Number | Case No: C1/2010/0690 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 February 2011 |
[2011] EWCA Civ 77
Mr Justice Mitting
Before : Lord Justice Carnwath
Lord Justice Rimer
and
Lord Justice Sullivan
Case No: C1/2010/0690
CO/126/2009 CO/3390/2009
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Patrick Green & Kathleen Donnelly (instructed by Hertfordshire County Council) for the Appellant
Fenella Morris (instructed by London Borough of Hammersmith & Fulham) for the Respondent
Nathalie Lieven QC & Toby Fisher—Interveners for the Interested Party (instructed by John D Sellars & Co, Solicitors)
Hearing dates : Tuesday 18th January, 2011
The appeal
The question raised by this appeal is the allocation, as between social services authorities, of responsibility for meeting the care needs of a patient who is discharged into the community following a period of detention under section 3 of the Mental Health Act 1983.
The present dispute is nominally between Hertfordshire County Council (HCC), as appellant, and the London Borough of Hammersmith and Fulham (LBHF), as respondent. However, the procedural background is more complicated. The dispute between these two authorities concerned responsibility for meeting the aftercare needs of a patient, MW. Although, after the issue of proceedings LBHF accepted responsibility on the facts of the case, HCC did not agree to discontinuance of the proceedings, because it considered the issue to be of more general importance. Permission for judicial review was granted on 11 August 2009. Meanwhile, on 25 th March 2009, in another case involving LBHF, permission had been granted for judicial review, this time on the application of the patient (JM). This related to its decision that the London Borough of Sutton (LBS) was responsible for his aftercare.
On 3 rd March 2010 Mitting J dismissed both applications. HCC appeals with permission granted by Jackson LJ on 13 th May 2010. Neither LBS nor JM has appealed against the decision in his case. However, JM has been granted permission to intervene in HCC's appeal. He himself has now been placed in after-care accommodation in the London Borough of Ealing, which he and the authorities accept as satisfactory for his needs. Accordingly, he has no immediate interest in the outcome of the case, although of course circumstances may change. The only live issue therefore, at least at present, is responsibility as between LBHF and LBS for payment for that accommodation. Although LBS has not taken any part in the appeal, it may be that, if HCC is successful in its appeal, it will be able to transfer financial responsibility for JM's continuing care to LBHF. Whether that is so (in the face of Mitting J's unchallenged judgment against it) has not been explored in argument, and I express no view on the point.
HCC has been represented before us by Mr Green and Miss Donnelly, and LBHF by Miss Morris. JM, as intervener has been represented by Miss Lieven QC and Mr Fisher, who have generally supported HCC's submissions.
Against this unusual background, we have been asked to consider the facts of JM's case as illustrative of the problem, even though the case is not strictly before us on the appeal. No substantive relief is sought by HCC, other than a declaration designed to settle the legal position for the future.
The facts – JM's case
Between 1991 and 2006 JM lived in the area of LBHF in a one-bedroomed council flat. He suffers from significant cognitive impairment and a disorder diagnosed as Korsakoff's psychosis. In 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 still in the area of LBHF, and later transferred to a hostel. He was involved in two more road accidents while staying there.
In July 2007, following an assessment of his mental health, it was decided that his needs could no longer be sustained in a community setting. On 31st July 2007, he was transferred to Roanu House in LBS. Eight days after his transfer to Roanu House, he signed a notice terminating his tenancy with LBHF.
The circumstances of that action were the subject of some dispute before us. The judge described that action as taken "on the advice and with the support of his family", and commented:
"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."
Miss Lieven drew our attention to the contrast between that finding and the statement in LBHF's Detailed Grounds of Defence dated 17 th December 2009:
"It appears that JM lacks capacity to decide where he should reside. In consequence JM's expressed wishes as to his residence are of limited significance."
Miss Morris told us, without dissent, that the judge's comments on that issue were based on new information obtained at his request during the hearing, and to that extent should be regarded as superseding the Detailed Grounds. I see no basis on which we can go behind the judge's finding of fact on this point.
JM stayed at Roanu House until 22nd January 2008, but appears never to have been happy there. In September 2007, he returned to Hammersmith and slept rough for a period before being returned to Roanu House by the police. On 22nd January 2008, JM was admitted to Sutton Hospital, a psychiatric hospital, for assessment under section 2 of the Mental Health Act 1983. He remained there until 29th February 2008. Although it was concluded that Roanu House was not a suitable placement, he was returned there, and stayed until 10 th April 2008, when he was readmitted to Sutton Hospital for treatment, this time being compulsorily detained under section 3 of the 1983 Act. The initial maximum period of compulsory detention under that section was six months, but with power to renew following further assessment (s 20), subject to any appeal to the Mental Health Appeal Tribunal.
By 28th October 2008, his consultant psychiatrists considered that he was reaching a stage when his discharge from hospital could take place. However, finding a suitable placement continued to cause problems, which were aggravated by a dispute over responsibility. It seems that until August 2008 LBHF had continued to accept responsibility for him, but that about that time they changed their position. A report to the Mental Health Review Tribunal dated 30 th September 2008 noted that his LBHF social workers had discharged him from their caseload, and that the placement at Roanu House had been terminated. After a hearing on 21 st November 2008, the tribunal commented that they had been unable to consider the possible option of placement in the community because it was unclear which authority was responsible for providing the necessary information.
The tribunal proceedings were adjourned on a number of occasions. On 26 th February 2009 the tribunal determined that although there had been considerable improvement in his condition his detention in hospital should continue, until a suitable placement could be found in a less restrictive setting. It was noted that if not detained under the section he would be likely to abscond in view of –
"his continuously expressed wish to return to Hammersmith and Fulham where he has friends and feels in familiar surroundings".
On 23rd March 2009, he was discharged from Sutton Hospital to Kenilworth House in the London Borough of Ealing. As already noted, that placement has been successful.
Statutory framework
The issue turns on the relationship and contrast between the provisions for allocation of responsibility under two statutory provisions: National Assistance Act 1948 section 21, and Mental Health Act 1983 section 117.
The relevant provisions of the 1948 Act are:
" 21 Duty of local authorities to provide accommodation
(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…
…
24 Authority liable for provision of accommodation
(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.
…
(5) 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."
The power to provide accommodation under section 21 was in 1993 converted into a duty by direction of the Secretary of State. By section 32(3) any question as to a person's ordinary residence is to be determined by the Secretary of State.
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