Tinsley and the Aftermath for Statutory Care Funding

The Court of Appeal case of Tinsley v Manchester City Council & Ors [2017] EWCA Civ 1704 will always be of particular interest to me because I was involved at every stage, from drafting the initial complaint against Manchester City Council, right through to the Court of Appeal hearing before the Master of the Rolls.  

The case concerned the refusal of after-care services provided under s117 of the Mental Health Act. These services are intended to help some of the most vulnerable members of society and are supposed to be provided free of charge, without means testing.  In the Tinsley case, Manchester City Council had refused to provide after-care services on the basis that Mr Tinsley had previously received a care award in a personal injury claim and therefore – they said – was not entitled to after care.

The disparate and bold arguments advanced by the Local Authority focused on the principle of double recovery, wider issues of fairness, the financial pressures on Local Authorities and – unusually if not uniquely in a forum determining issues of law – ‘morality’.  It is understandable why the circumstances of this case may appear unfair to Local Authorities, given the number of demands made on finite resources.  However, a closer analysis reveals why s117 services are provided on a non-means tested basis and why it would be wholly unfair to deny Mr Tinsley access to these services.

Mental Health Act

s117 applies to all people who have been compulsorily detained under the Mental Health Act in order to receive treatment. The duty to provide these services is shared between Local Authorities and Clinical Commissioning Groups and becomes active as soon as the person is discharged from hospital.

The range of services that might fall within the definition of ‘after-care’ is deliberately wide, but the services must be linked to the person’s mental disorder and be required in order to reduce the risk of their mental health deteriorating. It is clear that these services are intended to help people on their discharge from Hospital and enable them to remain in the community rather than a Hospital setting. Purely on this basis it therefore makes sense that people should not be charged for services intended to reduce their risk of Hospital admission, nor should they be prohibited from accessing these services on the basis of their means.

After-Care Services

Manchester City Council had sought to argue that Mr Tinsley was prohibited from accessing after-care services and contended that the alleged double recovery absolved them of their s117 obligations. They referred to the cases of Peters v East Midlands Strategic Health Authority [2010] QB 48 and the Court of Appeal decision in Crofton v NHSLA [2007] 1 WLR 923 as the basis for their argument that the principle of double recovery applied. However, these cases concerned the quantification of damages at the conclusion of clinical negligence claims and were thus distinguishable from Mr Tinsley’s position.

It was argued on behalf of Mr Tinsley that a refusal to provide services on the basis of his earlier personal injury award would have the effect of charging him for the services that he was entitled by statute to receive without charge. It is a well-established principle that the NHS is free at the point of contact and so to have denied Mr Tinsley access to after-care services would have the effect of imposing a means test.

The law on the provision of after-care services is clear: there can be no means test.  Parliament had the opportunity to revisit this principle when debating what was to become the Care Act 2014.  However, the Care Act reinforced the provision of non-means tested s117 after-care services.

The Court of Appeal

The Court of Appeal unanimously agreed with the arguments advanced on behalf of Mr Tinsley and described some of the points taken by Manchester City Council as being “impossible”.  This was an important decision because it confirms that Local Authorities cannot deny support to some of the most vulnerable members of society. The financial constraints imposed upon Local Authorities do not absolve them of their duties.

Where does this leave financially pressed Local Authorities?  There are legitimate avenues aimed at preventing true double recovery.  Manchester City Council referred to the case of Peters.  This case established that undertakings can be given not to seek public funding for care where an award for care is made in litigation.  What have become known as ‘Peters undertakings’ are now commonplace in personal injury/clinical negligence claims that engage these issues.  Reverse indemnities can also be obtained during the litigation process, much to the same end.  However, the proposition supported by the important case of Tinsley is that where there is no indemnity or undertaking, a person cannot be deprived of their statutory rights merely because a Local Authority feels aggrieved at what they perceive to be unfairness or ‘immorality’.

If you are affected by any of the issues raised here, please get in touch today cop@psg-law.co.uk We are here to help you.