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.
‘Impossible’ arguments
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.
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I work in NHS Continuing Healthcare where the issue is the same. Providing care packages of hundreds of thousands of pounds a year when people have already had at times multi-million pound payouts for the incidents that lead to the primary health need and payouts that are designed to pay for care.
It is so dispiriting when we are trying to manage budgets that are under huge pressure yet see some people have so much and others so little. The NHS is paid for from current taxation, so ‘ordinary hard working tax payers’, many of them with young families and struggling to make ends meet are paying for this double jeopardy anomaly. It doesn’t make sense.
The system needs to change and is not sustainable in its current form.
I totally agree Yvonne, it is morally wrong. Insurance/ damages payouts should be used to pay for care.
If the shoe was on the other foot would you be saying that the law is the law section 117 following detention under section 3 of the mental health act hasn’t changed local authorities have always tried to wriggle out of their responsibilities under the mental health at the management of budgets are not the responsibility of the person in need of care and support
An accident caused his Personality Disorder? I was unaware that this was possible? Can someone clarify for me please?
I agree with the first comment in this link.Recieving funding twice is ridiculous, especially in the present finncial climate
Yes this is indeed baffling! I work in a Mental Health Service and this is the first time I have heard this is possible! I suspect the condition was already present however perhaps the behavioural aspect was exacerbated by the change in his circumstances leading him o be sectioned due to him posing a risk to himself and/or others. I cannot see how his diagnosis would affect him to the point he required significant care – however cannot fully comment on this unless I have the full details of the case. If he had an accident which left him with physical/mobility problems then required care for this – then this would not usually fall under a s.117 need as such. It appears as thought the local authority/nhs trust did not get to grips with this case – there is no mention of what his ‘assessed needs’ are only that he was ‘seeking’ a home-based care package’. At times in these cases there needs a clear assessment to determine what are ‘needs’ and what are ‘wants’ – what is s.117 eligible and what is social care funded.
This is another diagnosis label for frontal lobe damage to the brain ….. it’s said to bring about organic personality changes
Acquired Brain Injury can induce a range of cognitive impairments including personality disorder. I suspect this is the case and before such sneering and comments lacking in compassion are made it would be wise for people commenting here to find out more about the very complex problems people awarded high rate damages usually face.
It is wrong that people with a lot of money can still receive social care from the state. People are dying waiting for care and people are suffering. The whole system needs a radical overhaul.
Why did you publish the man’s name Community Care? Were you not concerned for his rights and his welfare?