Tinsley v Manchester City Council & Anor

Authorities providing after-care under section 117 of the Mental Health Act 1983 cannot refuse provision because the person can pay from personal injury damages. Section 117 creates a non-means-tested entitlement and contains no power to charge. The common-law rule against double recovery in personal injury damages claims does not qualify that statutory entitlement. Nor may an administrative court deny relief because a deputy is said to be seeking double recovery. Questions about a deputy’s compliance with fiduciary and statutory duties fall within the supervisory framework governing deputies. Any policy change addressing possible double recovery is for Parliament.

The claimant had been compulsorily detained under section 3 of the Mental Health Act 1983 and was subsequently entitled to after-care under section 117. Following a personal injury action, he received damages including an amount for future care. He later sought provision under section 117 because his existing care arrangements could no longer be sustained from those funds.

The defendant refused provision on the basis that the claimant could fund his care from the damages. The parties agreed that the issue should be determined as a preliminary issue. The questions were whether personal injury damages could be taken into account in deciding need, whether pursuing section 117 provision would offend the principle against double recovery, and whether relief should be refused on that basis.

1. Preliminary issue determined for the claimant. The defendant could not refuse to provide or arrange after-care under section 117 of the Mental Health Act 1983 because the claimant could fund care from personal injury damages.
2. In R v Manchester City Council ex p Stennett [2002] 2 AC 1127, the House of Lords had held that section 117 contained no express or implied power to charge. That established a free statutory entitlement, regardless of the recipient’s resources. The reasoning was reinforced by Crofton v NHSLA [2007] 1 WLR 923, although Crofton concerned different statutory provisions and was not strictly binding. The statutory scheme in section 117 was, if anything, stronger because it was non-means-tested.
3. The principle against double recovery did not entitle the defendant to withhold section 117 services. Peters v E. Midlands Strategic Health Authority [2010] QB 48 was concerned with the assessment of damages and did not establish a general duty preventing a deputy from applying for statutory funding. A deputy’s statutory, fiduciary and common-law duties were owed to the person lacking capacity, not to the local authority, tortfeasor or insurers.
4. The Administrative Court was not an appropriate forum to determine whether a deputy was acting improperly in seeking provision, particularly where the claimant’s financial circumstances and care needs might change. Such matters were subject to the statutory control of the Court of Protection and the Office of the Public Guardian. The court therefore rejected the proposed discretion to refuse relief.
5. A declaration was granted. The defendant’s determination of 30 September 2015 was quashed, and the matter was remitted to the defendant for a fresh decision in accordance with the declaration. A mandatory order requiring the defendant to fund a particular care package was refused. The claim for recovery of past payments was deferred for further pleadings, possible alternative dispute resolution and directions.

This was a first-instance judicial review claim. HHJ Raynor QC had ordered a rolled-up hearing, but the parties agreed that the fundamental issue should be determined as a preliminary issue.