R v Richmond London Borough Council, ex parte Watson. ; R v Manchester City Council, ex parte Stennett. ; R v Harrow London Borough Council, ex parte Cobham. ; R v Redcar and Cleveland Borough Council, ex parte Armstrong
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD STEYN,LORD HUTTON,LORD MILLETT |
| Judgment Date | 25 July 2002 |
| Neutral Citation | [2002] UKHL 34 |
| Court | House of Lords |
| Date | 25 July 2002 |
and Two Other Actions
[2002] UKHL 34
Lord Slynn of Hadley
Lord Mackay of Clashfern
Lord Steyn
Lord Hutton
Lord Millett
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Steyn. For the reasons he gives I too would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons that he has given and with which I agree, I would dismiss these appeals.
My Lords,
In 1982 Parliament placed a duty on health authorities and local social services authorities to provide after-care services for persons in their areas who have been discharged from compulsory detention under provisions of the Mental Health Act 1959: section 51 of the Mental Health (Amendment) Act 1982. In the next year this provision became section 117 of the consolidated Mental Health Act 1983. Although the provision has been on the statute book for nearly 20 years it still is a matter of controversy whether the authorities are legally entitled to charge for after-care services.
The Department of Health has consistently taken the view that health authorities and social services authorities may not charge for services which they render in consequence of their duty under section 117. A circular under the heading "Advice Note for Use by Social Services Inspectorate" issued by the Department of Health in January 1994 dealt with the point. Paragraph 2 reads as follows:
"2. Section 117 of the Mental Health Act 1983 imposes duties on local social services authorities and health authorities to provide after-care services (which may include home care services). Services provided under section 117 of the Mental Health Act 1983 are not subject to charging under section 17 of the 1983 Act."
In response to a Parliamentary question in July 1998 the government stated that "charges cannot be levied for services, residential or non-residential, which are provided as part of the programme of after care for a patient … under section 117": Hansard Written Answers, 28 July 1998, col. 172. Nevertheless, there has been for many years confusion on this point among social services authorities and health authorities. The House was told that about two-thirds of the authorities charge for such services and one third do not. The question whether such charging is authorised by statute has substantial resource implications. While one views unverified figures with some scepticism, it was said that the annual sum so recovered by authorities was of the order of £31m and that, if repayment has to be made of charges levied since 1993, the sum involved may be about £80m. Higher figures given to the Court of Appeal were apparently wrong: R v Richmond upon Thames London Borough Council, Ex p Watson [2001] QB 370. Behind these figures lie, no doubt, innumerable tragic personal stories of mentally ill individuals, who were charged for after-care services.
It has been the policy of successive governments to shift mentally ill patients from the institutional care of the National Health Service to care in the community: - Bridget Dimond, Legal Aspects of Care in the Community, 1997, p 1. The point is therefore of great importance.
The three cases before the House all involve mentally ill persons who were formally admitted to hospital under section 3 of the 1983 Act. They were discharged and placed in caring residential accommodation. The local social services authorities involved charged them for the provision of after-care services. The lawfulness of the decisions to charge by the authorities was challenged in judicial review proceedings. In careful judgments delivered by Sullivan J on 28 July 1999 ( [2000] LGR 318) and by the Court of Appeal (Otton and Buxton LLJ and Hooper J [2001] QB 370) on 27 July 2000 it was ruled that there is no right to charge for after-care services. (Since the decision in the Court of Appeal Mary Watson has died. There are now only three appeals.) On appeal to the House the rulings made below have been challenged on behalf of the authorities.
The central question is whether section 117 authorises and requires the provision of the "after-care services" or whether it merely operates as a gateway section to trigger provisions under other statutory provisions. If the first view prevails, it is common ground there is no right to charge for the after-care services because section 117 itself contains no charging provision. On the other hand, if the second view is correct, the authorities may charge under other provisions even in cases covered by section 117. The three cases before the House concern the provision of caring residential accommodation to formerly detained mentally ill patients. But exactly the same issue could arise in respect of the other after-care services provided under section 117(2), eg psychiatric treatment. In respect of residential accommodation the relevant other provision under which it is said that charging was authorised is section 21 of the National Assistance Act 1948. Section 21 contains an express charging provision.
For convenience of discussion I set out the material parts of section 117 as amended in 1995 and 1997:
"(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 Health Authority 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 Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject.
(2A) it shall be the duty of the Health Authority to secure that at all times while a patient is subject to after-care under supervision -
(a)
a person who is a registered medical practitioner approved for the purposes of section 12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder is in charge of the medical treatment provided for the patient as part of the after-care services provided for him under this section; and
(b)
…"
(Emphasis added)
It is important to note that section 117 applies to two primary classes of persons, viz mentally disabled persons detained for treatment under section 3 of the 1983 Act or by virtue of a hospital order made by the court pursuant to section 37. In addition section 117 applies to smaller classes of persons detained under hospital directions made by the Crown Court under section 45A or transfer directions made by the Secretary of State under sections 47 and 48. All classes of person to whom section 117 extends are exceptionally vulnerable persons.
Next it is necessary to identify what is embraced in the concept "after-care...
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