From Mental Health Law Online
DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) domestic legislation required this result and it was not suggested that the legislation was incompatible with European obligations.
Before: Langstaff J
Mr Mansfield QC & Mr Gearty (instructed by Switalskis LLP) appeared on behalf of the Claimant
Mr O'Brien (instructed by Doncaster Metropolice BC In House) appeared on behalf of the Defendant
Mr Coppell (instructed by Department of Work & Pensions) appeared on behalf of the First Interested Party (Secretary of State for Health)
Bailii - No transcript on Bailii at time of writing
Michael Kennedy and Bilkiss Bashir, 'Short Changed' (Private Client Adviser, February 2012). This article concludes: 'For now, the argument as to the legality and power for a local authority to charge someone deprived of their liberty and compelled to live in a care home remains open to lively debate.'