Section 117 Aftercare – Case update on impact of alternative funding sources
Published 28 November 2016
Section 117 of the Mental Health Act 1983 (MHA) sets out the legal duties on Local Authorities and CCGs to provide aftercare to certain detained patients once they cease to be detained. This is a 'stand-alone' duty and services provided under S.117 cannot be charged for. Given the financial implications of this, issues relating to S.117 eligibility often come before the Courts.
There have been two recent High Court cases looking at eligibility for S.117 aftercare where an individual has an alternative source of funding for their future care in the form of damages or an insurance payout.
The key points to take from these cases are:
- A person's ability to fund the cost of aftercare services from a personal injury damages award cannot be taken into account when determining whether to provide them with S.117 aftercare.
- A person wrongly denied S.117 aftercare can in principle bring a private law claim in restitution - i.e. a claim for monies wrongly paid out - against the public bodies involved.
Both cases underline the principle that S.117 aftercare must be provided free of charge, regardless of the individual's resources.
What were the cases about?
Tinsley v Manchester City Council related to a man who suffered head injuries in a road traffic accident, leaving him with an organic personality disorder. This led to him being detained in hospital under Section 3 MHA. After discharge, he was cared for in a mental health nursing home funded under S.117. He was subsequently awarded £3.5 million in damages for the accident, including almost £2.9 million for the cost of future care. He then left the S.117 funded nursing home and, thereafter, all the costs of his care were paid out of his damages. However, from 2010 onwards it was argued on Mr Tinsley's behalf that the Local Authority was under a duty to pay for his aftercare under S.117. The Local Authority maintained that it was not under such a duty because Mr Tinsley could pay for the care out of his damages and, if they were to pay for this under S.117, this would amount to 'double recovery'. The Local Authority's stance was subsequently challenged by way of Judicial Review.
Kenneth Richards v Worcestershire County Council and South Worcestershire CCG similarly involved a man who had sustained head injuries in a road traffic accident. He was subsequently diagnosed as having frontal lobe damage and bipolar affective disorder. He was detained in hospital under S.3 MHA on a number of occasions and later discharged under supervision arrangements. His care package following discharge was paid for privately through an insurance settlement reached following his accident. From 2006 onwards, it was argued on behalf of Mr Richards that - despite his insurance payout - he had been entitled to S.117 aftercare funding since he was last discharged from hospital in 2004. This subsequently led to court proceedings being issued in 2015 for recovery of almost £645,000 which had been spent on Mr Richards' care. It was argued on behalf of the Local Authority/CCG that the case should be struck out on the basis that no private law cause of action (e.g. a claim for recovery of monies paid out, as here) can arise from failure to carry out S.117 duties.
What did the Court decide?
In Tinsley, the Court concluded that the Local Authority cannot refuse to make provision for someone otherwise entitled under S.117 on the basis that they are in receipt of a personal injury damages award. By extension, the same principle will apply to CCGs. In this case, Mr Tinsley's ability to pay for aftercare services - from whatever source - was irrelevant in assessing whether he was eligible for S.117 aftercare. This was despite the fact that his personal injury damages award specifically covered his care costs. Whilst the Judge acknowledged that public authorities will be 'extremely frustrated' if Court of Protection Deputies routinely make applications for full state funding which they are powerless to refuse in circumstances where there are sufficient resources from damages specifically awarded for the cost of care, the fact remains that the statutory regime does not create any exception for successful personal injury claimants. The problem of double recovery would be a matter for Parliament to change by way of amending the legislation and is not a matter for the Courts to intervene in.
In Richards, the Court had to decide whether Mr Richards was limited to challenging public authority decisions about his S.117 funding via judicial review (which would not necessarily lead to financial redress) or whether he could bring a private law money claim in restitution against the Local Authority/CCG. Although public authorities cannot be sued in negligence for failing to perform their S.117 obligations, the Court concluded that Mr Richards could, in principle, bring a claim in restitution. As the law stands, a successful claim in restitution would depend on the public authorities having been 'unjustly enriched' due to some 'unjust factor' such as the existence of a mistake of fact or law. Failure to perform a public duty (e.g. to make S.117 provision) alone had never of itself been found to constitute an 'unjust factor' necessary for a claim in restitution to succeed. Given that it had been argued on Mr Richards' behalf since 2006 that he was entitled to S.117 aftercare, the Judge said it was difficult on the face of it to see how he could establish that payments after that time were made under 'mistake'. Nevertheless, he concluded that the possibility of claim in restitution against the Local Authority/CCG could not be discounted and left those representing Mr Richards to continue to pursue this. It remains to be seen, however, whether he would win such a claim.
These cases serve as a useful reminder that a person's financial resources - whatever the source - are irrelevant to S.117 entitlement.
Even if the person is in receipt of a personal injury damages award or insurance payout specifically designed to cover the cost of future care, this does not affect their entitlement to S.117 aftercare. This is likely to remain the case unless there is a change to the legislation on this point.
It is also now theoretically possible to bring a money claim against Local Authorities/CCGs if S.117 aftercare has been wrongly denied, although such a claim can still only be brought on relatively narrow legal grounds and its success or otherwise would depend very much on the specific facts of the case.
How we can help
Our national team of mental health specialists has extensive experience in advising health and social care providers and commissioners in relation to all aspects of Section 117 aftercare, including disputes between Responsible Commissioners, and disputes with individuals regarding their entitlement to S.117 funding.
We can provide bespoke training in relation to all aspects of the Mental Health Act, including issues arising out of Section 117 from an NHS and Local Authority perspective.