DM v Doncaster Metropolitan Borough Council

The Mental Capacity Act 2005 authorises and safeguards deprivation of liberty but does not impose a duty or confer a power on a local authority to provide accommodation. Accommodation for a person lacking capacity may therefore fall within the objective need-based duty in section 21 of the National Assistance Act 1948, even where the person is compulsorily detained and cannot consent. Section 21(8) does not exclude that accommodation from the statutory charging regime. Section 22 consequently requires the authority to recover the regulated charge. Charging a person in those circumstances does not constitute discrimination contrary to Article 14, read with Article 1 of Protocol 1, where the comparison with persons receiving mental-health aftercare is materially inapt and the legislative distinction is in any event justified.

DM challenged charges imposed by Doncaster Metropolitan Borough Council for the accommodation of her husband, FM, in a care home. FM had dementia and was detained under the deprivation of liberty safeguards in Schedule A1 to the Mental Capacity Act 2005. The parties agreed that the precise calculation of the charge was no longer in issue.

The central question was whether FM’s accommodation was provided under the Mental Capacity Act 2005, so that section 21(8) of the National Assistance Act 1948 excluded the section 22 charging regime, or whether it was provided under section 21 of the 1948 Act. The claimant also relied on section 3 of the Human Rights Act 1998 and Article 14 of the Convention.

1. The claim was dismissed, save that the parties agreed the amount due was £5,855.83. The court held that the Mental Capacity Act 2005 did not create a duty or power requiring Doncaster to provide accommodation. Its structure was directed to authorising deprivation of liberty, protecting managing authorities from liability, and providing safeguards against arbitrary detention. The statutory duties to secure assessments and grant a standard authorisation did not imply an accommodation duty.

2. The decision in Stennett was distinguishable. There, section 117 of the Mental Health Act 1983 imposed an express stand-alone duty to provide aftercare services, including accommodation. That necessary starting point was absent here. The DOLS provisions operated as an authorisation and safeguards regime, not as a source of accommodation.

3. FM was within section 21 of the National Assistance Act 1948. The statutory test was objective need for care and attention which was not otherwise available, rather than a person’s wishes or ability to consent. Section 21 was wide enough to include a person who could not decide whether to accept accommodation. Section 21(8) did not remove the case from section 21, and section 22 therefore required Doncaster to recover the charge in accordance with the regulations.

4. Section 3 of the Human Rights Act 1998 did not justify a contrary interpretation. The proposed serial use of section 3 to turn section 21(8) into a gateway and then reinterpret the Mental Capacity Act was contrived. The statutory language did not contain the necessary uncertainty and could not bear an interpretation contrary to its plain meaning.

5. There was no discrimination under Article 14 read with Article 1 of Protocol 1. Persons receiving section 117 aftercare were not in materially similar circumstances: their care was linked to prior compulsory detention under the Mental Health Act and to a distinct public-interest treatment regime. In any event, the decision to charge for social-care accommodation was justified. The observations in Stennett concerning the inequity of charging mental-health patients were social and moral observations, not statements of legal principle.