R (Damien Tinsley (by his litigation friend and property and affairs deputy, Hugh Jones) v Manchester City Council and South Manchester Clinical Commissioning Group [2016]

R (Damien Tinsley (by his litigation friend and property and affairs deputy, Hugh Jones) v Manchester City Council and South Manchester Clinical Commissioning Group [2016]

Keywords: s117, Charging, Personal Injury, Trusts

The essential question in this case was whether it was lawful for the responsible authorities to refuse to provide s.117 aftercare services to Mr. Tinsley on the grounds that he could fund services he needed from personal injury damages awarded to him.

The claimant’s position was that this was unlawful because the law is quite clear that the relevant authorities cannot charge for s.117 aftercare services under any circumstances (R v Manchester City Council ex p Stennett [2002]). However the defendants argued that allowing Mr. Tinsley’s deputy to claim the provision of free s.117 aftercare services on his behalf would breach the principle against double recovery (a common law rule as to the assessment of damages) (Crofton v NHSLA [2007] & Peters v East Midlands SHA [2009]).

Mr. Tinsley had developed a personality disorder as a result of serious head injuries sustained in a road traffic accident in 1998. After being detained under s.3 MHA, he was discharged to a mental health nursing home funded by the relevant authorities under s.117. In the meantime, the claimant was awarded damages which included £2.89 million for his future care. During that case, an argument that the damages should not include care costs because the relevant authorities were obliged by s.117 MHA to provide free care was rejected by the judge. In awarding damages which included future care costs he held that the relevant authorities were lawfully entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them. He further concluded  that they would not fund either a care regime which the claimant was prepared to accept or even the care regime which he had found to be reasonable. He made clear that in his view, not to award damages for future care costs on the grounds that the state was obliged to meet these would result in an undeserved windfall for the insurers of the at fault party in the claim.

Following that judgment in 2005, Mr. Tinsley left the nursing home funded by the relevant authorities under s.117 and, since that time, his deputy had paid the cost of his accommodation and after-care services from his personal injury damages. However, in 2009 a new deputy was appointed for Mr. Tinsley in circumstances where there were concerns that his previous deputy had mismanaged his financial affairs. Mr. Tinsley’s new deputy was of the view that funding of his existing care arrangements from his personal injury claim was unsustainable and sought to compel the local social services authority to accept a duty to fund Mr. Tinsley’s after-care under s.117 MHA.  The local authority then took  the position that Mr. Tinsley’s deputy could continue to fund his own care using the personal injury award and therefore that it was not under any duty to provide after-care services under s.117, until the money had run out.

It was held that, as a matter of the clear construction of s.117 MHA (and noting that Parliament had had a recent opportunity to change that construction whilst making extensive amendments to s.117 in the Care Act 2014 but had not chosen to do so), s.117 after-care must be provided free of charge regardless of the resources of the patient (no matter what the source of those resources). It was not open to the local authority/CCG to refuse to provide services under s.117 to an individual on the basis that they had received personal injury damages which included the costs of such care. However, provided the issue of his personal injury damages had been excluded from the factors relevant to its decision, it was not for the court to second guess what after-care provision the local authority might determine should be provided under s.117. The decision, therefore, did not automatically mean that the local authority would be obliged to take over funding Mr. Tinsley’s current care arrangements. Rather it required them to consider afresh what aftercare they were required to provide for him under s.117 now that it had been made clear that his resources were not relevant to that determination.

Drawing on case law from personal injury claims (Peters v East Midlands SHA [2009]) which established that a deputy is not obliged to claim state funding on behalf of their client where there is a statutory duty towards them by a public body but may fulfil their statutory and fiduciary duties to P by pursuing a personal injury claim on their behalf for the full costs of their care, the local authority sought to argue that Mr. Tinsley’s deputy was acting unlawfully by seeking to claim double recovery. Rejecting this argument, the judge concluded that the lack of an obligation to claim state funding did not prohibit a deputy from doing so. He emphasised that a deputy’s duties are owed only to the person lacking capacity and not to local authorities nor to the defendant in a personal injury action. It was held that the potential for double recovery in such cases was a consequence of the construction of s.117. He concluded:

I entirely accept that hard-pressed local authorities will be extremely frustrated if deputies do routinely make applications for full state funding which they are powerless to refuse in circumstances where there are sufficient resources from the proceeds of personal injury claims specifically awarded in relation to the cost of future care available to the claimant. However that is a consequence of the statutory regime, equating s.117 with general non means-based healthcare provision under the NHS, without creating an exception for successful personal injury claimants, which must be changed – if at all – by Parliament if it is thought that the existing control mechanisms are not sufficient to ameliorate the problem of double recovery. As Ms Richards submitted, since substantial changes have recently been made to s.117 through the Care Act 2014, Parliament has recently had the opportunity to make such changes, but has chosen not to do so. It is not for the court to intervene in such circumstances.” [para.38]

 

Link to full text: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2855.html

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