A judge has dismissed a local authority’s appeal against providing mental health aftercare services to a man already awarded £3.5 million in damages for the accident that caused his personality disorder.
Legal experts say the Court of Appeal judgment published last week, in which Lord Justice Longmore upheld a year-old judicial review brought against Manchester council on behalf of Damien Tinsley, could have “significant financial implications” for local authorities at a time of financial pressure.
Manchester had refused to pay for aftercare for Tinsley, who was involved in a 1998 car accident and later sectioned, in accordance with section 117 of the Mental Health Act 1983, arguing that he should self-fund it from his personal injury award.
Adam Fullwood, one of Tinsley’s barristers from the 39 Essex Chambers firm, said there was likely to be a “reasonable number” of people who had received similar awards and might at some stage seek aftercare either under section 117 of the Mental Health Act or via the Care Act.
Manchester’s barrister, Hilton Harrop-Griffiths, had submitted that because the damages were intended to pay for care, for the council to also provide services would run contrary to an established principle against ‘double recovery’.
But existing legislation, including the Care Act 2014, expressly excludes personal injury payments from consideration as part of an individual’s capital. Moreover, the council acknowledged there was no justification not to provide services under s117 based on personal wealth.
Justice Longmore said the council was relying on “impossible” arguments. Citing a 2002 House of Lords decision that forbade charging for s117 aftercare services, he criticised Manchester for “seeking to recover by the back door what it cannot recover by the front”.
Legal experts told Community Care that cash-strapped local authorities and clinical commissioning groups (CCGs) were likely to be “disappointed” and “frustrated” by the case but said the decision should come as no surprise.
Tom Young, a solicitor from the Hugh Jones legal firm, which instructed barristers for Tinsley, said the case was important “because it confirms that financial constraints do not absolve local authorities of duties and responsibilities to society’s most vulnerable”.
‘Reasonable cost of private care’
At the 2005 hearing where Tinsley’s damages were originally awarded, Justice Leveson rejected a submission by the defendant that no such award should be made because of local authority duties under s117.
The Mental Health Act says CCGs and local authorities must, following long-term [section 3] detention, provide aftercare to meet an individual’s needs relating to their mental illness and reduce the risk of deterioration.
But, Justice Leveson ruled that, because of public bodies’ limited resources, they should not in Tinsley’s case be expected to fund the home-based care package he was seeking. Tinsley was “therefore entitled to recover the reasonable cost of private care from [the defendant] Mr Sarkar”, with some of the damages being used to buy a house for him to live in.
Had Tinsley made clear at the time that he would seek to rely on s117 aftercare, he would not have been able to pursue the care costs subsequently awarded to him. This would have constituted ‘double recovery’.
Yet, said Justice Longmore, “it does not follow from this that, if a claimant is awarded damages for his aftercare he is thereafter precluded from making application to the local authority.”
Tinsley’s application followed concerns raised in 2009 that his affairs had been mismanaged. According to the Hugh Jones firm, now acting as his deputy, the cost of funding his existing arrangements would ultimately be unsustainable.
Manchester council’s position was that it should have no responsibility for aftercare until the money had actually run out. But Tinsley’s representatives successfully argued that this was unlawful in light of the construction of the Mental Health Act reached by the Lords in 2002, because it would effectively constitute making him pay for aftercare.
‘No great surprise’
Paul McGough, a senior associate at the DAC Beachcroft legal firm, said that it should come as “no great surprise” that the Court of Appeal had “essentially reiterated” the Lords’ decision.
“It may appear unfair that a service user can both claim damages and receive public funding in respect of the same care needs, but this is not a matter over which local authorities or CCGs have any control,” McGough added. “Barring a successful further appeal, any change will have to come from Parliament, but it is not clear this is being considered at this point in time.”
Fullwood said the case clarified that the Care Act’s introduction had “presented [missed] opportunities to change regulations disregarding personal injury awards from the charging process”.
‘Lack of uniformity’
Michael Henson-Webb, head of legal at the mental health charity Mind, said he was “pleased” with the decision to dismiss the appeal. He said the case highlighted the need for greater consistency in the ways authorities administer s117 aftercare.
“There is a distinct lack of uniformity in how s117 aftercare packages operate in different areas across the country, which could mean some people are not receiving the support they are entitled to,” Henson-Webb said.
“The legal framework around s117 is inadequate,” he added. “National protocols would help ensure that people get the help they need, when they need it, regardless of where they live, and that all mental health services in their area work the way they should.”
Manchester council has 28 days to appeal the judgment. Community Care has contacted the local authority for comment.