The Court of Appeal case of Tinsley v Manchester City Council & Ors  EWCA Civ 1704 will always be of particular interest to me because I was involved from drafting the initial complaint against Manchester City Council, right through to the Appeal hearing before the Master of the Rolls. For those of you who don’t know, the matter 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 an award for personal injury and therefore was not entitled to these services.
The arguments before the court focused on the principle of double recovery and wider issues of fairness, morality and the financial pressures on Local Authorities. In all honesty, I can understand why the situation may appear unfair to Local Authorities, given the continued austerity measures that they have had to deal with. However, if you scratch below the surface of this issue then it becomes apparent 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.
First of all, the nature of s117 is that it applies to 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. In my mind 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 or prohibited from accessing these services on the basis of their means.
Manchester City Council had sought to argue that Mr Tinsley was prohibited from accessing after-care services and contested that the principle of double recovery absolved them of their duties in this regard. They referred to the cases of Peters v East Midlands Strategic Health Authority  QB 48 and the Court of Appeal decision in Crofton v NHSLA  1 WLR 923 as the basis for their argument that the principle of double recovery applied. However, these cases concerned personal injury claims where the principle of double recovery is trite law. Double recovery in this regard is a private law issue that makes perfect sense when you consider that the law would not seek to facilitate someone obtaining more than one award in respect of the same loss.
This is very different from cases such as Mr Tinsley’s and the public law issue that was in dispute with Manchester Council. It was argued on behalf of Mr Tinsley, that a refusal to provide services on the basis of his personal injury award, would in effect be the same as charging him for the services that he was entitled to receive free of charge. It is a well established principle that the NHS is free at the point of contact and in my mind to deny Mr Tinsley access to after-care services would be no different than means tested access to the NHS. The law on the provision of after-care services is clear and if Parliament had wanted to change this then they had the opportunity when they implemented the Care Act 2014, which instead reinforced the provision of s117 after-care services.
The Court of Appeal unanimously agreed with the arguments advanced on behalf of Mr Tinsley and described some of the points contested by Manchester City Council as being “impossible” arguments. I believe that 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 these duties.
So where does this leave cash strapped Local Authorities you might ask? I think that there are legitimate avenues for them to protect their limited resources in certain cases and ensure that these reach the people who require support the most. As stated above, Manchester City Council referred to the case of Peters and although I think their interpretation of this case was misplaced when applied to Mr Tinsley, the judgment in Peters does outline how Local Authorities can seek to prevent what they perceive to be double recovery. There are means by which the risk of double recovery can be alleviated via undertakings and reverse indemnities that can be obtained during litigation. I am not suggesting that these are appropriate in all cases but perhaps the extent of their utilisation is yet to be explored by Local Authorities and in my opinion this would be a more suitable solution that the litigation involving Mr Tinsley.
As for supporting vulnerable clients, I will continue to wave the flag promoting their rights to receive the statutory services to which they are lawfully entitled.