Why is it not lawful to charge for s117 Mental Health Act aftercare?
In the quartet of local authority cases (see Watson) the Court of Appeal has comprehensively forbidden charging for residential services provided by way of aftercare, under s117 of the Mental Health Act (which applies to those released from detention under sections 3, 37, 47 and 48 of the Act). The anticipated cost of repayment of unlawful charges was estimated as being £80 million, in the light of an ADSS survey conducted after the High Court decision.
The Court of Appeal confirmed that there was nothing in the legislative framework which suggested that s117 was anything other than a free-standing duty to provide a particular sort of service – aftercare – the scope of which was wide enough to cover residential accommodation. They rejected the notion that s117 was merely a gateway through to the underlying statutory bases for service provision, such as s21 or s29 National Assistance Act 1948, and the s3 National Health Service Act provision functions of a HA. There was no inherent unfairness in those who had been compulsorily detained being provided with accommodation for free. Given the terms of s21(8) of the NAA (which actually forbids provision of a service under s21 if that service is ‘… authorised or required …by or under any other enactment …’) there is no legal power for LAs to provide aftercare under s21 NAA to those people who count as117 patients.
The House of Lords has given permission for an appeal to go ahead, and it is expected to be heard before the end of 2001.
It would be unlawful even pending the appeal by the local authorities involved in the Watson case to continue to charge any s117 patient who has been determined on professional assessment to need accommodation as an aspect of their aftercare package.
It would be at the least sensible to make it plain to clients or their formal financial representatives that if the decision is overturned on appeal, the authority reserves the right to charge the clients retrospectively for the amount they would otherwise have been assessed to pay, and that it would therefore be prudent for all such clients to bank the ‘windfall’ residential care allowance or attendance allowance or DLA which they may have been able to continue claiming in the meantime.
We think that it is not necessary in law, to make any actual repayments (to either past or current clients) until the appeal process has reached a final conclusion, and it would indeed be prudent not to. If the appeal decision overturns the decision it will be very difficult if not impossible, to get the repayments back from the clients. We think that the authority’s public law duty will be met so long as the legal or finance department makes it clear in correspondence with those who ask, and with clients who are ‘owed’ money, that the money will be repaid with interest if the appeal is unsuccessful.
In the meantime we would expect that authorities would have instituted a review of all identifiable s117 files to identify which clients have actually had accommodation provided, because it was implicitly acknowledged to be part of the essential aftercare package. Those are the cases where authorities are likely to be liable for a repayment and it would be absurd to wait to do this task until lawyers had formulated actual proceedings.