Regina v Manchester City Council, Ex p Stennett (FC) and two other actions

Section 117 of the Mental Health Act 1983 is a free-standing source of the duty and power to provide after-care services to persons leaving specified forms of compulsory hospital detention. It is not merely a gateway through which services are supplied under other enactments.

The statutory duty necessarily carries the power needed to perform it. Because section 117 contains no charging provision, an authority may not charge the recipient for qualifying after-care by treating the service as supplied under another statutory power. After-care may include health and social support, domiciliary services and caring residential accommodation.

Three formerly detained mental health patients were discharged into caring residential accommodation. Their local social services authorities treated the accommodation as chargeable under section 21 of the National Assistance Act 1948. The patients challenged the charges by judicial review.

Sullivan J held in [2000] LGR 318 that the authorities could not charge. The Court of Appeal, comprising Otton and Buxton LJJ and Hooper J, upheld that conclusion in [2001] QB 370.

The central issue before the House was whether section 117 of the Mental Health Act 1983 itself authorised and required the provision of after-care, or merely triggered powers found in other enactments under which charges could be imposed.

1. The appeals were dismissed unanimously. Lord Steyn delivered the leading speech. Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Hutton and Lord Millett agreed with his reasons.

2. Per Lord Steyn, section 117(2) of the Mental Health Act 1983 is a free-standing provision. Its imperative language imposes a duty upon health authorities and local social services authorities to provide after-care to each qualifying person until both authorities are satisfied that the person no longer needs it. A gateway provision would have identified the other enactments under which the services were to be supplied. Section 117 contains no such language.

3. The statutory context confirmed that conclusion. Section 117(2A)(a), together with sections 25A to 25H, referred expressly to after-care supplied under section 117. That language was inconsistent with the contention that the services were supplied under unnamed statutory provisions. Section 2 of the Chronically Sick and Disabled Persons Act 1970 illustrated how Parliament could draft a genuine gateway provision.

4. Per Lord Steyn, the duty to provide after-care necessarily imports a concomitant power to perform it. The proposed separation between a duty under section 117 and a power under another enactment was contrived. The alternative argument that section 117 imposed only a general duty of co-operation was irreconcilable with its command to provide services. Section 22 of the National Health Service Act 1977 already made express provision for inter-authority co-operation.

5. Qualifying after-care included caring residential accommodation. Because the services were provided under section 117 and that section contained no charging power, the authorities could not charge for them under section 21 of the National Assistance Act 1948.

6. The result was not anomalous. Section 117 protects an identifiable and exceptionally vulnerable class whose compulsory detention may reflect danger to themselves or others. Conditions attached to the discharge of restricted patients may require residence or treatment, so the patient may have no voluntary choice about receiving the service. These considerations supported the construction adopted below. The Hansard material relied upon did not assist the statutory interpretation.

1. House of Lords: The authorities’ appeals were dismissed unanimously: [2002] UKHL 34.
2. Court of Appeal: Otton and Buxton LJJ and Hooper J upheld the ruling that there was no right to charge for section 117 after-care: [2001] QB 370.
3. High Court: Sullivan J held that the authorities had no right to charge for the after-care services: [2000] LGR 318.