Summary
After a long period of uncertainty, we now have the final answer from the Supreme Court in relation to the case of R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care and responsibility for commissioning and funding aftercare under s.117 of the Mental Health Act. This decision ends the 'limbo' for a number of similar disputes nationally, which were effectively on pause pending the outcome of this further appeal.
With resources being even more tightly squeezed, the issue of responsibility for the provision of aftercare is potentially even more fraught. This decision will have significant implications for Local Authorities and ICBs in determining where responsibility lies and when it ends. Whether or not relevant bodies welcome the outcome of this decision, it at least delivers much needed certainty in this challenging area.
In this briefing, we look at the Supreme Court’s decision and its implications.
What was the case about?
This key case relates to the legal duty to provide aftercare under s.117 of the Mental Health Act and the identification of which Local Authority is responsible for its provision. In particular, the Supreme Court was asked to determine responsibility for s.117, when a person, already in receipt of s.117 services, moves to a different Local Authority area and is then re-detained under a s.3.
Background
The patient involved in this case, JG, has a diagnosis of schizoaffective disorder requiring periods of treatment in hospital under s.3 of the MHA. JG was first detained on a s.3 in 2014, at which time she was ordinarily resident in Worcestershire. On discharge from hospital, she was placed by Worcestershire County Council (‘Worcestershire’) in a care home in Swindon, under s.117, funded by Worcestershire. She was subsequently moved to a second care home in Swindon, still funded by Worcestershire under s.117.
However, in 2015 JG was re-detained on a s3. During the period she was in hospital, Worcestershire terminated the placement in Swindon by standard termination notice which made no reference to s.117 or to any decision that JG was no longer in need of aftercare services. When JG was ready for discharge again from hospital, an issue arose as to which body was responsible for her s.117 aftercare following this second admission and the Secretary of State was asked to determine responsibility in accordance with the dispute resolution process (under s.40(1) of the Care Act 2014). Initially, the Secretary of State decided in favour of Worcestershire, on the basis that the s.117 responsibility had shifted to Swindon Borough Council (‘Swindon’) since JG was ordinarily resident in Swindon immediately before the second detention, in accordance with the Secretary of State’s statutory guidance. This was challenged by Swindon and, on review, the Secretary of State reversed his decision (February 2020), finding that s.117 responsibility remained with Worcestershire, in part because it was decided that JG’s ordinary residence remained with Worcestershire despite the move to Swindon, which the Secretary of State accepted was contrary to his own guidance, which would be amended (although no such amendment was made, pending the outcome of the Supreme Court case).
Worcestershire then sought a judicial review of this decision in the High Court, which was successful, but was appealed by the Secretary of State to the Court of Appeal, with Swindon as an interested party. The Court of Appeal held that the s.117 responsibility remained with Worcestershire, since their obligation to provide aftercare had not been ended. This was appealed by Worcestershire to the Supreme Court.
In the interim, the Secretary of State position remained that any disputes on similar points would not be considered until the outcome of the appeal.
The Issues
The issues in this case are complex, and have revolved around:
- How to identify JG's ordinary residence immediately prior to detention on a relevant section (s.3), thus triggering the s.117 responsibility on discharge.
- Whether ‘immediately before being detained' relates to the first time the patient is detained, rather than where the patient was ordinarily resident immediately before the most recent s.3 detention.
- Whether (and how) the s.117 responsibility ends after a further s.3 detention.
The Secretary of State’s determination in February 2020 that Worcestershire remained responsible for JG’s s.117 aftercare, was primarily based on the fact that ordinary residence remained with Worcestershire, since they placed JG in Swindon and remained fiscally and administratively responsible for JG, even though she clearly no longer lived in Worcestershire. Alternatively, it was argued, the Authority responsible for s.117, remains responsible regardless of further relevant detentions, which meant it remained with Worcestershire and, in any event, that since Worcestershire had not ended their s.117 responsibility that it remained with them and so did not pass to Swindon when JG was re-detained (since there can't be dual responsibility).
This decision was held to be wrong in law and quashed by the High Court, on the basis that:- ordinary residence is determined by applying common law rules and JG had acquired an ordinary residence in Swindon; responsibility for s.117 is established on the basis of ordinary residence immediately before each relevant detention; the duty on Worcestershire was terminated by operation of the law once the ‘fresh’ s.117 duty on Swindon was triggered on JG’s discharge from hospital.
On appeal to the Court of Appeal, the Court found that Worcestershire remained the body responsible for the ongoing provision of aftercare to JG, on the basis that Worcestershire’s s.117 duty had not in fact been terminated by operation of the law on discharge from hospital after the second detention and so it continued, regardless of whether or not JG had gained ordinary residence in Swindon, meaning that Worcestershire remained responsible for the ongoing provision of aftercare to JG, unless and until this duty was terminated by the agreement of Worcestershire and the relevant CCG as aftercare bodies (s.117(2)).
However, the Court of Appeal agreed with the High Court that JG had acquired an ordinary residence in Swindon on the application of usual common law rules and that the Supreme Court ruling in the Cornwall case ([2016] AC 137) does not apply when determining ordinary residence for s.117 purposes.
Supreme Court Decision
The Supreme Court allowed the appeal by Worcestershire and concluded that the correct interpretation of s.117 is that 'the duty under s.117(2) to provide aftercare automatically ceases if and when the person concerned is detained under s.3 (or any other provision specified in section 117(1)).'
On that basis, Worcestershire's duty to JG ended when she was re-detained under s.3 (the second detention) and a new s.117 duty was triggered on her second discharge, which falls on the Local Authority where JG was ordinarily resident immediately before the second detention.
The s.117 duty would not, however, be ended by an informal admission or a detention under s.2 of the MHA.
The Supreme Court further held that ordinary residence is assessed in accordance with the usual common law rule set out in Ex p Shah [1983] 2AC 309 and that no 'special rules of law' apply, either because of any deeming provisions, or the effect of the Supreme Court decision in the Cornwall case. The Court rejected the 'attempt to extend the Cornwall decision beyond the specific statutes under consideration in that case and their "parallel statutory context"' (paragraph 70).
Consequently, Worcestershire's duty to JG ended when she was re-detained under s.3, and a new s.117 duty was triggered on her second discharge, which falls on Swindon as the area where JG was living and was ordinarily resident, immediately before her detention.
Practical Impact
This case is welcomed in finally providing the answer after years of confusion and disputes that have arisen in relation to the s.117 duty. Whilst, moving forward, there will inevitably be disputes that arise on the facts of individual cases, we are at least clear how the legal framework applies.
Whilst this case may have less of a direct effect from a health perspective, since the identification of the relevant ICB is established through the process set out in the Who Pays Guidance and relevant Regulations, it will, of course, be important for ICBs to be clear which Local Authority shares the s.117 responsibility with them and to be alert to the fact that this may change with further admissions. In particular, consideration will need to be given to the potential impact on any funding agreements that may be in place and on how s.117 services are configured locally, particularly where s.75 agreements are in place.
What Next?
Whilst further statutory guidance from the Secretary of State may not now be necessary, relevant s.117 bodies and those with responsibility for s.117 ‘on the ground’ will need to get to grips with the impact of this judgment and consider whether their policies/processes are appropriate.
This is not necessarily the end of the issue, however, since the draft Mental Health Bill contains amendment provisions (clause 39), which, if passed, will effectively introduce into s.117 the Care Act 2014 (and the Social Services and Well-being (Wales) Act 2014) deeming provisions for adults, together with the provisions in s.105(6) of the Children Act 1989 for under 18s.
How we can help
Our national team of mental health specialists has extensive experience in advising health and social care providers and commissioners in relation to all aspects of s.117 aftercare, including disputes between Responsible Commissioners, and disputes with individuals regarding their entitlement to s.117 funding.
We can provide bespoke training in relation to all aspects of the Mental Health Act, including issues arising out of s.117 from an NHS and Local Authority perspective.
