Personal injury award cannot be considered when making provision for after-care services

A local authority is still under a duty to provide after-care services to a claimant under section 117 of the Mental Health Act 1983

Tinsley v Manchester City Council [2017] EWCA Civ 1704

Executive summary

A local authority is still under a duty to provide after-care services to a claimant under section 117 of the Mental Health Act 1983 despite the claimant having received an award for personal injury which included the costs of future care.

Background

The claimant, Mr. Tinsley, was injured in a road traffic accident in 1998 which left him with a serious head injury. He developed organic personality disorder and was compulsorily detained under s.3 of the Mental Health Act 1983 (“the Act”) before being discharged to a mental health nursing home funded by the defendant under s.117 of the Act. The claimant pursued a personal injury claim against the driver involved in the accident and was awarded a total sum close to £3.5 million including £2.9 million for future care costs. He then left the nursing home and paid for his accommodation and after-care services with the awarded damages. 

The Court of Protection became concerned that the claimant’s funds were being mismanaged and a new deputy was appointed in 2009 who assessed that the claimant would not be able to sustain funding his own care arrangements. The deputy applied to the local authority for after-care provision under s.117. 

The local authority argued that, as there was no evidence that the claimant could not continue to pay for his care using his personal injury award, it was not under any duty to provide after-care services. It further claimed that it would only be obliged to provide such services when the claimant had shown that he had exhausted his future care award and that, while the claimant was able to fund himself, providing local authority after-care would go against the principle of double recovery. The judge at first instance ruled that such a refusal was unlawful, but gave permission to the local authority to appeal the decision, which it did. 

Decision

The court took issue with the appellant’s argument that local authorities could take a claimant’s financial position into account when providing services under s.117. Firstly, the House of Lords had previously held that authorities were not entitled to charge for the provision of after-care services in line with s.117. In the present case, the Court of Appeal found that the appellant local authority’s refusal to provide after-care services equated to a decision to provide the services, but to charge for them. This refusal was therefore unlawful. Further, s.117 also applied to clinical commissioning groups (CCGs) which are prohibited from taking a patient’s means into account when providing services. It would therefore be unusual for a local authority to be permitted to do so under the same legislative provision. 

The court also rejected the appellant’s submission that it was immoral for the claimant to claim state care. There was no suggestion that the claimant, when pursuing his claim for personal injury, believed that he would receive state care and there was no deceit in him seeking access to a benefit to which he was clearly entitled. 

The courts would seek to avoid double recovery by a claimant when assessing damages against a negligent tortfeasor. If it appeared that a claimant was going to rely on a local authority’s after-care service, then he would not be able to recover those costs from the tortfeasor at trial. However, this approach did not mean that a claimant who had already been awarded those costs would then be barred from applying to his local authority for care under s.117. 

Implications 

Although a disappointing decision for local authorities, and to a lesser extent CCGs, given the previous authorities in relation to after-care services and local authority charging for adult social care services, perhaps not a surprising one. The decision together with those in cases such as Crofton and Peters will no doubt continue to cause significant frustration to cash-strapped public bodies who are funding care and support for those individuals who received damages awards to meet the cost of future care needs.

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