Tinsley v Manchester City Council & Ors



Judge: Court of Appeal (The Master of the Rolls, Longmore and Irwin LJJ)

Citation: [2017] EWCA Civ 1704

Summary

We reported on this case at first instance, the facts being found here. The Court of Appeal defined the question before them as “whether a person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released from detention but still requires “after-care services” is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor.”

Mr Tinsley submitted that Manchester’s refusal to provide after-care services unless it was satisfied that Mr Tinsley’s damages awarded had run out, was unlawful in the light of the decision of the House of Lords (as it then was) in Stennett [2002] 2 AC 1127 (where it was decided that the relevant authorities providing s.117 after-care could not charge for those services).

The local authority argued that  (1) that on the true construction of s.117 of the 1983 Act, Manchester was not obliged to provide after-care services if the claimant had been awarded damages for future care and (2) that to allow such a claim would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA [2007] 1 WLR 923 and Peters v East Midlands Strategic Health Authority [2010] QB 48.

Perhaps unsurprisingly[1] the Court of Appeal rejected the local authority’s arguments and upheld the first instance judge’s decision in a short and unanimous decision.

Lord Justice Longmore, who delivered the leading judgment described the argument that there was no duty to provide, arrange or provide after-care services if a claimant has funds for that purpose provided by a tortfeasor, as an “impossible” one on the basis that “a refusal to pay for such services is effectively the same as providing such services but charging for them.”

The Court of Appeal also had no trouble in disposing of the arguments about double recovery, finding that:

  • There is nothing wrong or immoral about a claimant who has received damages for future care from a tortfeasor then applying to the state for care.
  • Thus, unless there was some specific inhibition on deputies appointed by the Court of Protection arising from the risk of double recovery, there was no reason why Mr Tinsley should not now claim the benefit to which he may be entitled under s.117 of the 1983 Act.
  • A court, when assessing a damages claim for a claimant, will of course seek to avoid double recovery by testing whether the claimant really intends to pay for private care, or to rely on state care.
  • The local authority’s concerns about claimants who have been awarded damages for future care in tortious claims then claiming local authority care while still having the funds for private care, might be overstated. “Few claimants who have been awarded the costs of private care will voluntarily seek local authority care while the funds for private care still exist.”

Comment

Perhaps the most interesting point about this case is what the Court of Appeal had to say about the fundamental problem with the Peters decision. The Deputy in that case made an undertaking to the Court at the damages hearing that she would seek from the Court of Protection (a) a limit on her authority as the claimant’s Deputy whereby no application for public funding of the claimant’s care under section 21 of the 1948 Act could be made without further order, direction or authority from the Court of Protection and (b) provision for the defendants to be notified of any application to obtain authority to apply for public funding of the claimant’s care under section 21 of the 1948 Act and be given the opportunity to make representations in relation thereto.

The idea behind this approach was that if the Deputy wished at some later date to claim state provision for the claimant, she would have to (i) put the defendant on notice and (ii) seek permission from the Court of Protection. There are two reasons why this as a scheme does not achieve the result that was intended. The first is because following the case of Re SK [2012] EWHC 1990 (COP) it is doubtful that a defendant tortfeasor would be able to bring him/herself within the definition of a person who can be joined to Court of Protection proceedings.  The second reason is that, even if the defendant tortfeasor could be joined, the question for the Court of Protection would be whether it would be in P’s best interests to make an application for state funded care.  In making this decision, the court would not of course consider the position of the tortfeasors. It is almost inconceivable therefore that the court would conclude that it was not in P’s best interests to be able to make such an application.

[1] Although we understand Manchester are seeking permission to appeal.

CategoryDeputies - Financial and property affairs Date

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