Section 117 after-care: Commissioning responsibilities following Court of Appeal decision

On 1 November 2017 the Court of Appeal handed down judgment in the case of Tinsley v Manchester City Council. This is a matter which we have blogged on before and you can read our earlier blog posting.

The question in the appeal was whether a person who had been compulsorily detained under section 3 Mental Health Act 1983, but who had been discharged requiring section 117 after-care was entitled to require his local authority to provide such services at any time before he had exhausted sums, reflecting the costs of care awarded to him in a claim following a road traffic accident (RTA).

Mr Tinsley had been awarded £3.5m damages following an RTA which left him with an organic personality disorder. Of those damages over £2.8m related to future care.

Manchester City Council took the view that, given they had no reason to believe that Mr Tinsley could not continue to pay for his own care using funds derived from the damages he received for future care, it was not under any duty to provide after-care services under section 117. The City Council had lost this argument at first instance so appealed to the Court of Appeal. Their argument was that to provide after-care would offend against the principle of “double recovery”.

Counsel for Mr Tinsley argued that to refuse to provide after-care in such circumstances was effectively the same as providing such services and charging for them (which was prohibited in a case called Stennett).

One of the issues that concerned the court was the anomaly that would result if damages had to be disregarded in respect of patients who had not been compulsorily admitted, but were taken into account for those who had been compulsorily admitted.

The court accepted that if, at a trial relating to an RTA for example, a claimant seeks to rely on a local authority’s provision of after-care he would not be able to recover the cost of providing that after-care from the tortfeasor. However, they said that it did not follow from that that if a claimant was awarded damages for after-care he was thereafter precluded from making an application to the local authority. They did observe that if a claimant were to approach a local authority just after judgment, then the truth of the claimant’s evidence that he intended to make private arrangements for his after-care could be called into question and the case against the tortfeasor might be able to be reopened.

The court did not like the idea of undertakings being given by deputies that, should a need arise to apply for public provision, then the Court of Protection should be notified first.

This is a very unhelpful judgment for CCGs who may have been / have been utilising similar arguments in respect Continuing Healthcare or section 117 after-care.

We have frequently advised CCG clients on this area so do get in touch if you have any similar cases that you would like to discuss.

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