Judge: Langstaff J.
Citation:  EWHC 3652 (Admin)
Summary: This case is not a Court of Protection case, but is of importance because of the detailed analysis conducted by Langstaff J of the provisions of the MCA 2005 relating to deprivation of liberty.
Both husband (FM) and wife (DM) were in their 80s and had been married for 63 years. He had dementia and was being detained in a care home pursuant to a DOLS authorisation; she wanted him back home. The care home fees were being paid out of his limited income and their joint savings. His wife brought a claim to recover the fees, drawing an analogy with R (on the application of Stennett) v Manchester City Council  2 AC 1127 and by relying upon human rights arguments. In summary, Langstaff J held:
1. The MCA 2005 did not create either a duty or power to accommodate FM.
2. FM fell within the terms of s.21 of the National Assistance Act 1948 and was not excluded from its scope by the operation of s.21(8).
3. Section 3 of the Human Rights Act 1998 gave no reason to read down s.21(8) to reach any other conclusion.
4. FM’s accommodation at the care home therefore had to be paid for by him or on his behalf, in accordance with s.22 of the National Assistance Act 1948 and regulations made under it.
5. This was not discriminatory upon an application of Article 14 ECHR read with Article 1 of Protocol 1. FM was not materially in the same position as those who receive aftercare under the provisions of s.117 of the Mental Health Act 1983 and the State would in any event have offered sufficient justification for the result.
6. Domestic legislation requires this result and it was not suggested that this legislation was incompatible with European obligations.
The claimant contended that, by virtue of the DOLS authorisation, the local authority was under a duty to accommodate him under the MCA 2005 (no power to charge) rather than under s.21 of the National Assistance Act 1948 (duty to charge in s.22, subject to means testing). Rejecting the argument, Langstaff J held that the MCA 2005 did not impose a duty or power on local authorities to accommodate detained care home residents. As the DOLS supervisory body, they were obliged to ensure that the DOLS assessments were carried out, to check whether the six qualifying requirements were made out and, if they were, to grant the requested standard authorisation. They were not obliged to accommodate the person, to arrange for their accommodation, or to pay for it:
“The whole structure of the Act is designed not to provide for the accommodation of those who lack capacity and who are likely to suffer harm if not detained but to ensure that those who do detain such a person are free from liability for doing so.” (para. 35)
The MCA 2005 authorised detention; it did not require it. As a result, it was lawful to charge incapacitated individuals for their own detention if they fell within the National Assistance Act 1948 s.21. This required local authorities to provide accommodation for those who “by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them”. The claimant argued that this duty related to those who wanted accommodation to meet their needs, rather than to those who were accommodated through compulsion. But this was rejected: the test was objective and related to whether the person was in “need” of care rather than whether they desired accommodation for their needs:
“As a matter of interpretation the scope of section 21 is wide enough to cover those who do not necessarily wish to be accommodated by the local authority or who, as in FM’s case, are incapable of deciding for themselves whether they wish it.” (para 47)
Human rights arguments did not avail the claimant. An argument of statutory interpretation, based upon the presumption against the deprivation of property in Article 1 of the First Protocol, was rejected as “contrived and free aftercare under s.117 of the Mental Health Act 1983, it was contended that to require the former but not the latter to pay their care home fees was discriminatory, contrary to Article 14 ECHR, and could not be justified. Again, this was rejected:
“[I]n my view, those receiving after-care are not in the same material circumstances. They are different, in my view, because all of them necessarily (because of the statutory provision) have been detained earlier under section 3 or other provisions of the Mental Health Act. Those provisions require not only that the detention of the individual is in, and is proportionate to, his own interests in protecting him from harm, as in the case of FM, but also in the public interest as protecting them from harm, which is not the case with FM. The public has a distinct interest in the detention of those who have been released into aftercare, under section 117, in a way which it does not in the case of someone whose detention is authorised by the Mental Capacity Act.” (para 65)
The second material difference, it was said, related to the change of national policy which sought to transfer the treatment of mental patients from institutions into the community. Free aftercare was thereby part of the scheme designed to bridge the gap between the incarcerating institution and an unsupported return to the community (para 66). FM, on the other hand, was not detained under the MHA, was not a danger to others and, given the primacy of the MHA, the MCA was not an alternative choice for a decision maker where the individual came within the scope of the MHA (para 67).
The true comparison to be made was therefore held to be between those with mental capacity and those lacking capacity who were accommodated under National Assistance Act 1948 s.21. The former paid for their fees so there was no disadvantageous difference in treatment if the latter were similarly required to do so.
Finally, Langstaff J held, in the alternative, that even if those receiving free aftercare were the proper comparator, requiring the husband to pay for his fees would have been justified and therefore not contrary to Article 14:
“If a person wishes it, it is not unfair that he should pay. If he is incapable of forming a wish whether for or against accommodation then others may have to do that for him. Providing it is in his best interests to be in such a home, it is not unreasonable to suppose that if he had capacity, he would see that for himself and would wish to be in such accommodation. He would be in precisely the same position as the true volunteer. It is not inherently unreasonable for the State, in making its general provisions, to require a charge be paid by such a person.” (para 72)
Comment: This decision will disappoint those who consider it to be unconscionable for an incapacitated person to be made to pay for their detention by the State. Unlike the National Health Service, accommodation provided under Part 3 of the National Assistance Act 1948 has never been free. A proposed amendment to the Mental Health Bill 2006 would have ensured that the provision of accommodation for detained residents was free of charge but this was abandoned in the face of government opposition. DOLS was about best interests, not punishment, and there was a concern that the safeguards might not be used if the authorities knew that they would have to pay for the person’s detention. It might also provide a perverse incentive for relatives to ensure that their incapacitated family member came under DOLS in order to avoid care home fees.
However, those subject to DOLS are unable to choose to be detained and cannot choose their place of detention. Nor do they choose to spend their income and savings on a place from which they are not free to leave. Being forced to pay in these circumstances must be somewhat unique; it is difficult to conceive of any other situation in which the State can compel a citizen to pay for their own State detention. The claimant’s purported analogy with Stennett – the judicial bedrock for free MHA aftercare – was therefore interesting in a number of respects. There, Lord Steyn observed:
“It can hardly be said that the mentally ill patient freely chooses such accommodation. Charging them in these circumstances may be surprising … If the argument of the authorities is accepted that there is a power to charge these patients such a view of the law would not be testimony to our society attaching a high value to the need to care after the exceptionally vulnerable.”
Indeed, these moral arguments have even more persuasive force in respect of DOLS, not least because the person remains in detention whereas MHA s.117 applies once patients have regained their freedom. However, Lord Steyn’s observations, Langstaff J held, were “not statements of legal principle, however compelling they may be socially and morally” (para 73).
Insofar as freedom to choose is concerned, the judge’s comparison between those with capacity with those without may give cause for concern. After all, a person with capacity who is in need of care and attention not otherwise available to them is entitled to refuse a local authority’s attempt to fulfil its s.21 duty. In R v Kensington and Chelsea RLBC, ex parte Kujtim  4 All ER 161 it was held that the duty is discharged if the person:
“… Either unreasonably refuses to accept the accommodation provided or if, following its provision, by his conduct he manifests a persistent and unequivocal refusal to observe the reasonable requirements of the local authority in relation to the occupation of such accommodation.”
So in R v Southwark LBC, ex parte Khana and Karim  EWCA Civ 999, for example, the duty to accommodate would have been discharged for as long as Mrs Khana was unreasonably refusing the offer of a residential care home placement which was considered necessary by the local authority to meet her assessed needs. Those, like FM, who lack capacity are denied that choice and may not therefore be in the same position as “the true volunteer”; a person who, provided they have capacity, is entitled to make an unwise residential decision. Had FM appointed his wife under a personal welfare Lasting Power of Attorney whilst he had capacity, she could have refused what was being proposed and prevented the DOLS authorisation taking place, subject to a Court of Protection challenge.
Finally, all parties in this case accepted that if s.21 of the National Assistance Act 1948 applied, the local authority was compelled by s.22 to means test and charge FM for the fees. This rule appears wholly arbitrary with its complete absence of any discretion to waive or disapply the charges. Future challenges may well question whether such an arbitrary legislative rule is compatible in such Article 5 and 8 situations.