High Court rules on s. 117 after-care services and personal injury damages

It is not open to a council to refuse to make provision for a person otherwise entitled to after-care services under s.117 of the Mental Health Act 1983 on the basis that the claimant is in receipt of damages for personal injury including for the cost of such care, a High Court judge has ruled.

The claimant in Tinsley v Manchester City Council & Anor [2016] EWHC 2855 (Admin) had suffered very serious head injuries in a road traffic accident on 26 May 1998 which left him with an organic personality disorder which in turn led to his being compulsorily detained in hospital. After being discharged he spent time in a mental health nursing home funded by the relevant authorities under s.117.

In the meantime he brought proceedings against the driver involved in the accident who admitted 90% liability for the accident. The trial of the quantum of his claim came on before Leveson J. (as he then was) and in February 2015 the judge assessed those damages in a total sum approaching £3.5m, of which £2,890,257 represented future care.

Following Leveson J’s judgment the claimant left the nursing home funded by the relevant authorities and since then the cost of his accommodation and after-care services has been paid for by him (or, more accurately, by his deputy appointed by the Court of Protection) from the damages received in the personal injury action.

In 2009 his current deputy was appointed in circumstances where there were concerns that his previous deputy had mismanaged the claimant’s financial affairs.

The current deputy was of the view that the claimant was unable to sustain the cost of funding his existing care arrangements and has, since 2010, sought to require Manchester City Council to comply with what he contends is its duty to provide social care as an after-care service under s.117.

The local authority argued that since it had no reason to believe that the claimant could not continue to pay for his own care using funds derived from the damages he received for future care in the personal injury claim it did not consider itself to be under any duty to provide after-care services under s.117.

His Honour Judge Stephen Davies said the fundamental issue between the parties was whether or not it was lawful for Manchester to refuse to provide after-care services to the claimant under s.117 on the basis that he had no need of such provision because he was able to fund it himself from his personal injury damages.

The claimant argued that this was unlawful and represented a thinly-disguised attempt to charge through the back door.

The council's position was that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s.117 would offend against the principle against double recovery which had been established in the decided cases in the personal injury field.

Counsel for Manchester submitted that:

1. On a true interpretation of s.117 it was entitled to take into account, when deciding the question of need, the claimant's available funds represented by the personal injury damages. The council did however acknowledge that the decision in Crofton, although a decision about the provision of care costs under s.29 of the National Assistance Act 1948, rather than a decision under s.117 Mental Health Act 1983, was against this submission.
2. For the claimant's deputy to advance a claim for double recovery would offend against the law, fairness and common sense, and he should not be permitted by the court to do so. This argument was said to be supported by certain observations made by Dyson LJ (as he then was) in Peters.
3. In such circumstances the court should exercise its discretion under s.31(2) of the Senior Courts Act 1981 to refuse to grant the claimant relief.

However, HHJ Stephen Davies concluded that the claimant’s arguments should prevail.

The judge said he was satisfied that it was “not open to the defendant to refuse to make provision for a person otherwise entitled under s.117 on the basis that the claimant is in receipt of damages for personal injury including for the cost of such care”.

HHJ Stephen Davies added: “I entirely accept that hard-pressed local authorities will be extremely frustrated if deputies do routinely make applications for full state funding which they are powerless to refuse in circumstances where there are sufficient resources from the proceeds of personal injury claims specifically awarded in relation to the cost of future care available to the claimant.

“However that is a consequence of the statutory regime, equating s.117 with general non means-based healthcare provision under the NHS, without creating an exception for successful personal injury claimants, which must be changed - if at all - by Parliament if it is thought that the existing control mechanisms are not sufficient to ameliorate the problem of double recovery.

“As Ms Richards [counsel for Mr Tinsley] submitted, since substantial changes have recently been made to s.117 through the Care Act 2014, Parliament has recently had the opportunity to make such changes, but has chosen not to do so. It is not for the court to intervene in such circumstances.”

On the discretion to refuse relief, the judge said: “This is really in my view a last ditch argument if all else fails. But it seems to me to be contrary to principle to deny relief if the right to relief has been established as a matter of fact and law, and none of the recognised circumstances in which it has been held that relief should be refused apply.

“This is not a case where it could be said, for example, that the claimant or the deputy has in some way been guilty of an abuse of the process of the court in bringing this claim.”

The judge declared that the council may not have regard to the claimant's ability to fund the cost of after-care services from damages awarded to him in his claim for personal injuries when determining whether or not to provide or arrange for the provision of after-care services under s.117 of the Mental Health Act 1983.

He also directed the council to make a fresh decision on the claimant’s claim for provision under s.117 in accordance with the declaration within a reasonable time of this determination.