R (Afework) v London Borough of Camden
Summary: Mr Afework had been discharged from detention under the Mental Health Act 1983 ('MHA') in July 1993 and had since then been living in Council tenancies, receiving housing benefit. A criminal injury in 2000 led to a move into specialist accommodation. With the Criminal Injuries Compensation Authority due to pay out for the injury, and Mostyn J was asked to determine whether such accommodation amounted to after-care services in s.117 of the MHA. If it was, Afework would not have to pay the fees. If it was not, the accommodation would be provided under the National Assistance Act 1948 and would therefore be means-tested.
Noting the lack of any statutory definition of "after-care services", and the recognised distinction between specialist enhanced accommodation ("accommodation-plus") and ordinary, or bare, accommodation, his Lordship observed:
"The hyphenated linking of the word "after" with "care" within the first component shows that the services in question must be consequential to the detention in hospital. The services must relate to the reason, and only to the reason, for the detention in hospital. In my opinion that is the only possible logical interpretation that can be given to the qualification of the component "services" by the hyphenated component "after-care"." (emphasis in the original)
In R (Mwanza) v Greenwich London Borough Council [2011] PTSR 965, Hickinbottom J did not agree that, as a matter of legal principle, ordinary accommodation could never fall within s.117, although it was difficult to envisage such circumstances arising. In the present case, Mostyn J noted:
"16. I too have racked my brain to think of "circumstances in which a mere roof over the head would, on the facts of a particular case, be necessary to meet a need arising from a person's mental disorder" and I too have drawn a blank. I think the reason that blanks have been drawn by two judges is because in truth there are no such circumstances. Further, I maintain my view that the literal and natural meaning of the words in s117(2), coupled with the legislative policy of the 1948 Act, is that basic or pure or ordinary accommodation does not come within the concept of after-care services, and so to that small extent I respectfully disagree with my brother."
His Lordship went on to state:
"19. I therefore hold that as a matter of law s117(2) is only engaged vis-Ã -vis accommodation if:
(i). The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition");
(ii). The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and
(iii). The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition." (our emphasis)
Afework's need for accommodation arose overwhelmingly from the assault in 2000 and not from the original condition which led to his detention under the MHA many years before. He therefore fell at the first hurdle and the specialised accommodation did not amount to after-care services.
Comment: This is a significant decision because, contrary to Mwanza, Mostyn J decided that as a matter of law ordinary accommodation can never be a free after-care service under MHA s.117: everyone needs a roof over their head. Of more potential relevance to the MCA 2005 is the third requirement; that the person is placed "on an involuntary (in the sense of being incapacitated) basis". This appears to us to be a novel, and somewhat concerning, requirement. It is not clear what is meant by "involuntary" and "incapacitated". A literal reading would tend to suggest that a person with the mental capacity to decide where to be accommodated post-discharge would not have their need for enhanced specialised accommodation met by s.117. We wonder whether this requirement has been over-influenced by a passage in DM v Doncaster Metropolitan Borough Council [2011] EWHC 3652 (Admin). There, at paragraph 66, Langstaff J refers to the fact that "the local authority does not have a choice whether to accommodate under section 117 or under section 21, or, as it may be, to authorise detention under the Mental Capacity Act with the consequences that follow. Statute applies, and provides no choice." The lack of choice or involuntariness refers to the legislation and not to the ex-patient. Still less does it refer to their mental capacity to decide where to be accommodated.
In our opinion, s.117 is aimed at meeting a particular psychiatric need. It is not aimed at countermanding coercion or incapacity. Whether a person agrees to their specialist placement or not, whether with or without capacity, should therefore be irrelevant to their entitlement. If someone detained for treatment under the MHA needs enhanced specialised accommodation to meet needs directly arising from their original condition, such accommodation should fall within s.117. Whether they are able to decide at the point of discharge whether to live there and, if unable, whether such inability arises as a result of the original condition, should have no role to play. The MCA requirement to assume capacity unless proven otherwise makes this all the more important. Given the significance of the extent to which accommodation falls within after-care services in these times of austerity, no doubt the reference to "incapacitated" will fall to be considered again in due course.
