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 | England & Wales |
| Judgment Date | 27 July 2000 |
| Date | 27 July 2000 |
| Court | Court of Appeal (Civil Division) |
Court:Court of Appeal
Otton and Buxton LJJ, Hooper J
R Lissack QC, R Tolson, M Mullins (instructed by the legal departments of the respective local authorities) for the local authorities; R Drabble QC and D Wolfe (instructed by the Public Law Project) for W and A; F Morris (instructed by Hogans) for S; J Richards (instructed by Mackintosh Duncan) for C.
Whether after-care services provided to formerly detained psychiatric patients under s. 117 Mental Health Act 1983, including accommodation, were to be provided free under that section, or whether it was a gateway to services provided under other statutes for which charges were to be made.
The four applicants had been detained under the Mental Health Act 1983 and then discharged from hospital, receiving after-care services, including accommodation, from the respective local authorities. This was pursuant to s. 117 of the 1983 Act. They were charged for their accommodation, and challenged the charges by judicial review, arguing that there was no power to charge for services provided under s. 117. The local authorities contended that s. 117 was not a freestanding duty but a "gateway duty" to ensure that after-care services were provided under such other provisions as were appropriate; that the relevant statute relating to the actual service provision was s. 21 National Assistance Act 1948; and that, under s. 22 of the 1948 Act, they obliged to charge, subject to means-testing. The judge persons for whom accommodation was provided under s. 21 according to their means. The judge rejected the authorities' contentions and quashed their decisions to charge the applicants for accommodation; he granted permission to appeal.
1. These four appeals involve an important issue as to whether charges can be levied by local authorities in relation to accommodation provided by them under s. 117 of the Mental Health Act 1983 to persons who have been discharged from detention under s. 3 of that Act. The local authorities contend that charges can (and indeed must) be levied; the applicants submit that there is no power to charge and charges cannot thus be made. On 28 July 1999 Sullivan J held that there was no power for the local authorities to charge for such residential accommodation in the absence of express statutory authority and that s. 117 conferred no power to charge. He granted permission to appeal.
2. The outcome of these appeals has wide-ranging financial implications for all local authorities. We are told that in practice local authorities are divided on this issue. About half recognise that there is a positive obligation upon them to provide accommodation free to such patients; the other half consider they have a right (or even a duty) to charge for this accommodation. The applicants in all four cases have all been subject to detention under s. 3 of the Act of 1983. Upon their respective discharge from that detention, the local authority in each case has provided them with residential accommodation.
Statutory framework
3. The two principle statutory provisions for consideration are as follows. Section 117 of the Mental Health Act 1983, as amended by s. 2(1) of and para 107(8) of Sched 1 to the Health Authorities Act 1995 and s. 1(2) of and para 15 of Sched 1 to the Mental Health (Patients in the Community) Act 1995:
"After-care. 117(1) This section applies to persons who are detained under s. 3 above, or admitted to a hospital in pursuance of a hospital order made under s. 37 above, or transferred to a hospital in pursuance of a transfer direction made under ss. 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."
4. The expression "after-care services" is not defined in the Act. Section 117 confers no express authority to charge for after-care services. It is the local authorities' principal contention that the power to do so derives from the National Assistance Act 1948, as amended by ss. 113 and 114 of and Sched 4 to the Mental Health (Scotland) Act 1960, s. 195(6) of and para 2(1) and (4) of Sched 23 to the Local Government Act 1972, s. 108(5) of and para 11 of Sched 13 to the Children Act 1989 and ss. 42(1), 44(1)(2) and 66 of and para 5(3) of Sched 9 to the National Health Service and Community Care Act 1990.
5. Section 21, so far as is material, provides:
"Duty of local authorities to provide accommodation. 21(1) Subject to and in accordance with the provisions of this Part of the Act, a local authority may with the approval of the Secretary of State, and to such an extent as he may direct shall, make arrangements for providing - (a) residential accommodation for persons aged 18 or over who by reasons of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and (aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."
6. However there is an important provision in subs(8) which provides that:
"nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977."
7. Section 22(1) provides:
"Charges to be made for accommodation. 22(1) Subject to s. 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section."
8. Thus the Act of 1948 imposes a duty to charge for residential accommodation according to means. Section 29 provides:
"Welfare arrangements for blind, deaf, dumb and crippled persons etc. 29(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of person to whom this section applies, that is to say persons aged 18 or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged 18 or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the minister."
9. Before Sullivan J the local authorities contended that s. 117 does not impose a free-standing duty to provide after-care services, including "caring" residential accommodation. It is a "gateway" section which imposes a duty to ensure that after-care services are provided under such other enactments as may be appropriate. In the case of residential accommodation they must ensure that it is provided under s. 21 of the Act of 1948. Once accommodation is provided under s. 21, then a charge must be made under s. 22. In respect of other aspects of after-care, the local authority must be sure that it is provided under, among others, s. 29. A local authority does not impose charges or discharge payments for that element of the after-care package.
10. Sullivan J held [(1999) 2 CCLR 402] that the question was one of statutory interpretation and accepted the submissions on behalf of the applicants that the starting point must be the language in s. 117 itself, considered not in isolation, but within the immediate framework provided by the Act of 1983 and the wider context of related legislation. He held that s. 117(2) imposes a duty on the health authority and the local social services authority to provide after-care services for persons to whom s. 117 applies. It does not impose a duty to secure the provision of such services under other powers, and no other enactments are mentioned in subs(2) as a potential source of such power. He alluded to the fact that there are other sections of the Act (which have been incorporated by way of amendment in 1990) which expressly referred to the fact that s. 117 imposed a freestanding duty to provide after-care services. Moreover, he held that s. 117 is an "other enactment" within the terms of s. 21(8). Given that s. 117 both "authorises" and "requires" the provision of accommodation for these four applicants, the effect of subs(8) was specifically to disengage the local authorities' s. 21(1) power. He made a declaration in respect of each applicant, that:
"(1) the applicant falls within the terms of s. 117(1) of the Mental Health Act 1983; (2) [his/her] accommodation must be provided pursuant to s. 117(2) of that Act, and not s. 21(1) of the National Assistance Act 1948; (3) accordingly, the [local authorities] are not entitled to charge the applicant for that accommodation."
11. Mr Richard Lissack on behalf of the local authorities...
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