Court of Appeal rejects appeal by mother over aftercare services and day trip expense

The Court of Appeal has rejected a claim by a mother that a council and a clinical commissioning group were required under s.117 of the Mental Health Act 1983 to meet her travelling expenses for a 240-mile round trip to see her son on day trips out of the mental hospital where he is detained.

In CXF, R (On the Application Of) v Central Bedfordshire Council NHS North Norfolk Clinical Commissioning Group [2018] EWCA Civ 2852 the claimant had been diagnosed with autistic spectrum disorder, severe to profound learning disabilities, speech and language impairment and attention deficit hyperactivity disorder.

Since 22 June 2016, he has been detained as a patient for the purposes of treatment under section 3 of the 1983 Act.

Because of his complex needs and challenging behaviour, there were a limited number of specialist residential placements at which suitable treatment was available. This resulted in his being detained since July 2016 at Cawston Park Hospital in Norfolk, which is 120 miles from his family home in Bedfordshire.

Since August 2016, the claimant has been granted daily leave of absence from the hospital under section 17 of the Act by the clinician responsible for his care to go on bus trips. These bus trips have taken place up to three times a day.

It is a condition of his leave of absence on these trips that the claimant is escorted on each occasion by two members of hospital staff. The purposes of the leave of absence are stated on the forms granting it to be leisure, treatment, and relaxation.

Once a week, the claimant's mother makes the long journey from her home in Bedfordshire to visit him, and back, travelling by car. During her visits, she accompanies her son on his bus trips and helps him to engage in a variety of activities including shopping, walks on the beach and visits to a local aviation museum and a local dinosaur park.

The Court of Appeal said that although there was some dispute as to the importance of his mother's presence on the trips, it was not disputed that the bus trips, the associated activities and the claimant's face-to-face contact with his mother were all therapeutically beneficial to him.

As found by the High Court judge, the cost of the weekly visits made by the claimant's mother was, for her, substantial and caused her real financial hardship.

Until the claimant's 18th birthday, the expenses were reimbursed by Central Bedfordshire Council under section 17 of the Children Act 1989 as part of the assistance provided to the claimant as a child "in need".

This funding ceased, however, when the claimant turned 18 and, since then, his mother has had to bear the costs of visiting him herself from her own social security benefits.

The appeal raised a question of interpretation of section 117 of the 1983 Act, which imposes a duty to provide "after-care" services to persons who are detained under the Act and then "cease to be detained and … leave hospital".

The question was whether this duty applied to a person granted leave of absence from hospital under section 17 of the Act to go on a day trip in the custody of hospital staff.

In September 2017, Dinah Rose QC, sitting as a Deputy High Court judge, ruled that the council and the CCG were not required to meet the mother’s travelling expenses. The judge considered that it was “clear that the claimant remained at all times detained in the hospital, and that he had not ‘left hospital’, even when he was enjoying leave of absence under s.17.”

Counsel for the claimant submitted before the Court of Appeal that the claimant was a person to whom section 117 applied during the periods that he was absent from hospital on day trips and that the services provided to him in taking him on such trips were "after-care services" provided under section 117.

Lord Justice Leggatt, with whom Lord Justice Haddon-Cave and Lord Justice Bean agreed, said the Court of Appeal was not persuaded by these submissions; nor did they in his view call in question the essential reasoning and conclusion reached by the judge.

Lord Justice Leggatt said: “On the facts of the present case there is neither any need nor any scope for the claimant to be provided with ‘after-care services’. As he remains in the care of the hospital and its staff even when he goes on the bus trips for which he is granted leave of absence, no question or possibility of "after-care" arises.

“Nor can it possibly be said in these circumstances that any services provided to the claimant during the trips have the purpose of "reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder", as required by section 117(6)(b). This is not and could not be their purpose because the claimant's return to the hospital at the end of each trip is not a risk which it is the aim of the trip to reduce: it is inevitable, being one of the terms on which leave of absence is granted. In any case, the claimant does not require "admission to a hospital again for treatment" at the end of each trip, as I interpret those words, as he has remained admitted to the hospital for treatment throughout the trip.”

Lord Justice Leggatt added that the trips were part of the treatment which the hospital was providing to the claimant. “Accordingly, the services provided to the claimant in taking him on escorted day trips do not and cannot constitute "after-care services" within the meaning of section 117.”