Afework, R (on the application of) v London Borough of Camden

Section 117(2) of the Mental Health Act 1983 requires after-care services to be consequential upon, and directly related to, the reason for the patient’s detention. Accommodation falls within the provision only where the need arises directly from the original condition, enhanced specialised accommodation is required, and placement is involuntary because of incapacity arising from that condition. Ordinary or bare accommodation is ordinarily provided under section 21 of the National Assistance Act 1948. A later injury or condition cannot be treated as the original condition merely by speculative counterfactual reasoning. The court also declined judicial review as a discretionary remedy where the claimant had advanced materially inconsistent accounts in related proceedings.

The claimant, who had previously been detained under the Mental Health Act 1983, sought permission to apply for judicial review against the defendant local authority. He argued that section 117 required the authority to provide his accommodation free of charge. The authority contended that the accommodation was ordinary or specialist social care accommodation chargeable under section 21 of the National Assistance Act 1948.

The claimant had suffered mental illness before sustaining severe brain injuries in a 2000 assault. The central issues were whether his present need for specialist accommodation arose from the condition leading to his detention, whether section 117 could cover the accommodation, and whether relief should be granted in the light of inconsistent positions taken in related compensation proceedings.

1. Application refused. The court refused permission to apply for judicial review because section 117(2) was not engaged and, independently, the discretionary remedy should not be granted in the circumstances.
2. Section 117(2) imposes a duty to provide after-care services for persons who have ceased to be detained and have left hospital. The expression “after-care services” is a compound term. The services must be consequential upon the detention and relate to the reason for which the person was detained. The court adopted the reasoning in R (Stennett) v Manchester City Council [2002] 2 AC 1127 concerning caring residential accommodation which takes the place of the hospital environment.
3. Accommodation engages section 117(2) only where:
   1. the need is a direct result of the condition giving rise to the original detention;
   2. enhanced specialised accommodation is required to meet needs directly arising from that condition; and
   3. the placement is involuntary, in the sense that incapacity arising from the original condition makes it necessary.
4. The court accepted that accommodation problems may fall within after-care services, but construed the relevant passage in Clunis v Camden and Islington Health Authority [1998] QB 978 as referring to support with accommodation problems, rather than a duty to provide bare accommodation. The court respectfully disagreed with the broader possibility left open in R (Mwanza) v Greenwich London Borough Council [2011] PTSR 965, while relying on the distinction between bare accommodation and accommodation-plus discussed in R (Gary Baisden) v Leicester City Council [2011] EWHC 3219 (Admin).
5. On the evidence, the claimant had lived with substantial independence before the 2000 assault. His present need for specialist accommodation arose overwhelmingly from the later brain injury, not from the mental illness which had led to his earlier detentions. The court rejected a speculative “but for” exercise aimed at reconstructing his position absent the assault.
6. The claimant had presented the compensation authority with the case that his present condition was overwhelmingly caused by the assault, while advancing the contrary case before the court. Applying the principle in Tinker v Tinker [1970] 2 WLR 331, the court held that the claimant could not have it both ways and that the discretionary remedy should not be exercised in his favour.