Richmond Boro Council & Ors v Watson & Ors

Section 117 of the Mental Health Act 1983 imposes a free-standing duty on health authorities and local social services authorities to provide after-care services. Those services may include residential accommodation required to care for persons discharged after detention under section 3.

Accommodation provided pursuant to section 117 cannot be recast as accommodation provided under section 21 of the National Assistance Act 1948 in order to attract charges. A public authority requires specific statutory authority to impose charges, and section 117 contains none. Policy considerations and Parliamentary material cannot justify departing from the provision’s clear language.

Four local authorities appealed against declarations made by Sullivan J on 28 July 1999. The declarations concerned persons who had been detained under section 3 of the Mental Health Act 1983 and were subsequently provided with residential accommodation.

The judge held that section 117 imposed a direct duty to provide after-care services, that the accommodation had to be provided under section 117 rather than section 21(1) of the National Assistance Act 1948, and that the authorities could not charge for it. The central issue was whether section 117 was a free-standing duty or merely a gateway to powers under other legislation.

1. Appeals dismissed. The local authorities were required to provide the respondents with after-care accommodation under section 117 of the Mental Health Act 1983. They had no power to charge for that accommodation.
2. Otton LJ held that “after-care services” naturally included residential accommodation designed to meet the needs of persons detained under section 3 and discharged from hospital. Section 117(2), expressed in imperative terms, imposed a specific and free-standing duty. It did not require the authorities to secure services under other statutory powers.
3. Section 21(1) of the National Assistance Act 1948 did not provide an alternative charging route. Accommodation available under section 117 was accommodation otherwise available for the purposes of section 21(1). Further, section 21(8) disengaged the section 21 power where provision was authorised or required by another enactment. The accommodation was therefore provided under section 117 and outside the charging regime in section 22.
4. Buxton LJ agreed. He emphasised that public bodies require positive statutory authority for their acts and that financial charges require specific statutory approval. A specific duty under section 117 could not be performed by using a more general charging power under section 21. Section 117 was sui generis and did not duplicate the section 21 power.
5. The wording was unambiguous. The absence of a definition of “after-care services” gave authorities discretion as to the level and appropriateness of services, but did not create ambiguity. Policy arguments, alleged financial anomalies and Parliamentary material could not justify departing from the statutory language or invoking Pepper v Hart.

Hooper J agreed that the appeals should be dismissed. The order was: appeal dismissed; legal aid taxation; leave to appeal refused.

• Court of Appeal (Civil Division): appeals from declarations made by Sullivan J on 28 July 1999 were dismissed. The declarations that accommodation was to be provided under section 117 of the Mental Health Act 1983 and without charge were upheld.