Keywords: s117, Charging, Personal Injury, Trusts
This was the appeal by Manchester City Council and South Manchester CCG against the ruling that they were obliged to provide s.117 aftercare services regardless of the assets of a man who had previously been awarded personal injury damages and even though they were intended to fund his care.
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). 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  & Peters v East Midlands SHA ).
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.
The council’s appeal against this ruling was rejected on the following grounds:
- That refusing to fund services is effectively the same as seeking to charge for those services and, therefore, that the fact that the funds available to Mr. Tinsley were expressly for the purpose of funding after-care did not negate the council’s obligation to provide non-chargeable aftercare under s.117.
- That it would be entirely anomalous for patients who had been compulsorily detained to have personal injury damages administered by the Court of Protection taken into account in determining their entitlement to s.117 aftercare when they were excluded from consideration of the means of non-compulsorily detained patients in need of care and support in the means test for Chargeable social care (both as existed following Crofton v NHSLA and as set out in the Care Act Charging regulations).
- That it was an impossible argument to suggest that a council could accept there was a “need” for such services pursuant to section 117 but then decide that an individual’s “needs” did not “call for” provision of those services by reason of the award of the damages for his personal injury, since that would require the second “needs” to be read with a wholly different meaning to the, clearly, medical “need” the section referred to.
- That it was also relevant that the shared duty was shared with a CCG and that it is accepted that CCGs cannot charge for services or take patient’s means into account when deciding what services to provide. It would, therefore, be odd if local authorities were allowed to do so in decision-making about what is essentially a health-related form of care and treatment.
- That the clear statutory duty imposed by s.117 to provide non-chargeable services could not be undermined by concerns regarding double recovery.
The Court of Appeal dealt in more depth with the issue of double recovery.
Longmore LJ set out the established position that, where an injured party is able to recover damages from a party at fault, it is reasonable for them to seek damages to fund private care where they would be eligible for state-provided care. However, if, at trial, it is apparent that the injured party will accept state-provided care, then they will not be able to recover damages to cover the cost of private care (since this would be double recovery). Nevertheless, he concluded, it does not follow that, having been awarded a sum for the costs of private care, an injured party’s access to care which a public body is under an express statutory duty to provide is in any way restricted.
Longmore LJ considered the possibility, raised in Peters v East Midland Strategic Health Authority , of restrictions being placed at the time of the award of damages on the injured party’s potential access to state-funded care, but concluded that, even if such restrictions had been considered in the present case, it cannot be right to transfer the burden of deciding whether a claimant is entitled to claim local authority provision to the Court of Protection.
The appeal was dismissed.
This judgement is a comprehensive dismantling of the council’s, increasingly stretched, attempts to find a viable route to circumvent the R v Manchester City Council ex parte Stennett 2 AC 1127 construction of s.117. It puts beyond doubt the complete irrelevance of financial means to entitlement to s.117 aftercare provision. It may also have relevance for CHC funding if a CCG were to reject funding on similar grounds of access to PI damages.
Full judgment at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1704.html