Better to be detained?

The High Court recently considered the case of Mr Mwanza, who suffers from mental illness and has on occasions been detained in hospital. Having become destitute, he sought to enforce his after-care rights, and in particular, to compel a local authority to provide accommodation for him and his family. He was not successful. (R (Mwanza) v London Borough of Greenwich and London Borough of Bromley [2010] EWHC (Admin) 1462)

Mental Health Act
Having been detained under section 3 of the Mental Health Act 1983 (MHA), Mr Mwanza was, of course, entitled to have after-care services provided to him under section 117. But that didn’t help him secure a home.

The judge ruled that accommodation is not necessarily part of the services a section 117 authority must provide. Those services are simply the ones that will meet a need arising from the patient’s mental disorder. The judge said:

“It may be that, if a former patient were unemployed or homeless, that would increase the chance of deterioration in his mental condition, but that would not require an authority to provide employment or housing … The need for work or a roof … are common needs, and do not arise from mental disorder.”

And he added:

“[I]t simply cannot have been the intention of Parliament to have required local authorities … free of charge, to provide a roof over the head of former section 3 patients.”

The judge said this conclusion was supported by comments in the National Framework for NHS Continuing Healthcare (which was published in 2009) and also by the fact that where housing is not provided under the MHA, it might nevertheless be possible to provide it under section 21 of the National Assistance Act 1948 (NAA). (It didn’t, however, prove possible here.)

National Assistance Act
Amongst many other things, the NAA provides a ‘last resort’ entitlement to residential accommodation. Under section 21(1)(a), Mr Mwanza would have to show that, by reason of age, illness, disability or other circumstances, he was in need of care and attention that was not otherwise available to him. He failed in this task, both on the facts and on the law.

The judge held that a person would not come within section 21 solely because he required accommodation. The authorities established, he said, that more was required; that a claimant would have to show that things were being done for him that he could not or should not be expected to do for himself. Following an ‘unimpeachable’ assessment, the local authority had concluded that in Mr Mwanza’s case, there were no such things.

There was, however, a second reason for denying Mr Mwanza section 21 support, and it had to do with his wife: his presence in the United Kingdom would be lawful only while she had leave to remain to here. But the judge said that leave had expired in February 2006. Because of an amendment introduced by New Labour in 1999, a person who would otherwise qualify for accommodation under the NAA will lose it if he does not have leave to remain in the UK. This was sufficient to deny Mr Mwanza and his wife accommodation, and the court said a similar result was brought about by section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (NIAA), and for a similar reason.

The NIAA exclusion must be dis-applied if such is necessary to avoid a breach of a person’s ECHR rights. Here, however, the judge held that no such breach would occur: the family appeared fully able to return to its country of origin (which, admittedly, some members had last seen 10 years ago) and Mr Mwanza said only a lack of the necessary funds had preventing him doing so already.

Comment
This case tells us some important things: first, that housing need not be part of a patient’s section 117 entitlement. That suggestion is the latest one in a debate that has been raging for many years, but in this case at least, it seems insecure. The judge justified it on the grounds that housing could just as easily, and more appropriately, be provided under the NAA. But as his judgment went on to demonstrate, the fact that someone needs accommodation might not be enough to ensure that he is given it under section 21. Oddly perhaps, the judge doesn’t so much as acknowledge that apparent contradiction.

The case also tells us that failed asylum seekers have a better chance of securing community services if they have been detained under section 3 of the MHA. That is because, unlike the NAA – and, for that matter, sections 95 and 98 of the Immigration and Asylum Act 1999 (which contain similar provisions) – the entitlement conferred by section 117 does not depend upon a former-patient’s immigration status. This distinction establishes another group of patients – alongside those who would otherwise have to pay care home charges when they leave hospital – whose material conditions on discharge might be enhanced if they were detained under the Mental Health Act rather than being admitted informally. It didn’t, however, do anything for Mr Mwanza.