Under Section 117 of the Mental Health Act 1983 (the "MHA"), Local Authorities ("LAs") and Clinical Commissioning Groups ("CCGs") have a joint duty to provide mental health aftercare services for people who have been detained in hospital for treatment under certain qualifying provisions of the MHA and who require it.
In recent years, legislation such as the Health and Social Care Act 2012 (the "HSCA"), the Care Act 2014 (the "Care Act"), and various regulations made and statutory guidance issued under these statutes have implemented substantial changes to the provision of and responsibility for s.117 aftercare services. Indeed, s.117 has been transformed from two simple paragraphs into a lengthy and complex section of the MHA.
In order to provide a detailed overview of the changes to s.117 aftercare services, Bevan Brittan will publish a series of articles addressing these important changes and their practical implications.
Our first article looked at what constitutes s.117 aftercare.
This is our second article and it looks at who is financially responsible for s.117 aftercare services.
Who is financially responsible for s.117 aftercare services?
It's been a tumultuous period for commissioners and practitioners working in the area of s.117 aftercare. Frequent changes to the law have made it extremely difficult to identify where responsibility lies and this has inevitably led to disagreements and more contested cases.
In March 2016, the Government took the much anticipated step of introducing further new Regulations regarding CCG responsibility for s.117 aftercare. This article looks at the impact of these new Regulations and how they have provided much clarity through a simpler and more streamlined approach to establishing s.117 responsibility. It also takes account of the relevant statutory guidance that has been issued.
Discharge: Under the MHA, the crucial date for the purpose of s.117 aftercare is the date of discharge from hospital; not the date of discharge from formal detention under the MHA. The duty to provide s.117 aftercare does not trigger until discharge from hospital. This does mean that s.117 aftercare becomes relevant during any period of s.17 leave from hospital (because the patient is discharged from hospital for the period that the leave is valid).
Qualifying Detention: Is a detention in hospital under a provision of the MHA which makes a patient eligible for s.117 aftercare; s.3, s.37, s.45A, s.47 and s.48.
Ordinary Residence: Refers to a person's residence as being the place in which they have settled voluntarily. The settlement can be of long or short duration but there must be a degree of settled purpose. Usually, OR for Local Authorities does take account of the "deeming provisions." OR for CCGs does not (strictly speaking) take account of the "deeming provisions."
Usual Residence: A person's perception of where they are resident in the UK or where they actually are. Where a person gives an address, then they should be treated as being usually resident at that address. If a person cannot give an address, or an address cannot be established, then consider where they are registered with a GP. Where there is no GP registration, then they should be treated as usually resident at the place they are currently present.
Discharge after 1 April 2016
For any patient discharged after 1 April 2016, the CCG and LA responsible for that patient's aftercare are the CCG and LA responsible for the geographic area in which the person was Ordinarily Resident immediately prior to being detained under a Qualifying Detention. It is fixed with that LA and that CCG (it will not change or transfer if the patient moves).
For example, if Patient A was ordinarily resident in Village X when she was detained under s.3 MHA, LA X and CCG X (covering the geographic area of Village X) would be responsible for financing and arranging her s.117 aftercare.
Deeming Provisions in legislation seek to "deem" financial responsibility for a service back to the placing organisation if a person has been placed out of area.
For example, if Patient A was placed by LA 1 in the geographical area of LA 2, under the Deeming Provisions, LA 1 retains responsibility for Patient A, even though on a strict application of Ordinary Residence, LA 2 would be responsible.
The Care Act 2014 contains various explicit deeming provisions for Local Authorities however it contained no explicit statement on whether such provisions would apply to s.117 aftercare. This caused much confusion as historically, case law had confirmed that deeming provisions did not apply to s.117 aftercare. This confusion persisted for almost a year but was finally (and thankfully) resolved in March 2016 by a revision to the Care Act Statutory Guidance. This revision maintained the historical position, clarifying that deeming provisions set out in the Care Act do not apply to s.117 aftercare.
Therefore, the Local Authority responsible for the area in which the person is Ordinary Resident immediately prior to Qualifying Detention will be responsible for that persons' aftercare, even if that person was placed into that area by another Local Authority.
This is also the case for CCGs, however it should be noted that the exceptions regarding looked-after children and overseas visitors continue to apply to CCGs for s.117 aftercare as they do for normal CCG responsibilities.
Discharge prior to 1 April 2016
For persons discharged before 1 April 2016, the new Regulations state that the CCG that was responsible, in law, for that person's aftercare on 1 April 2016 will continue to remain responsible; i.e. responsibility fixes with the responsible CCG as at 1 April 2016.
In simple terms and on a strict interpretation of the law, this will be the CCG responsible for the geographic area in which the person was registered with a GP on 1 April 2016. If the person was not registered with a GP, it will be the area in which they were Usually Resident on that date (i.e. the patient's perception of where they were living).
For example, if Patient B was discharged prior to 1 April 2016 but was still receiving aftercare services on 1 April 2016, the responsible CCG will be the CCG responsible for the geographic area where Patient B was registered with a GP on 1 April 2016. Responsibility fixed at this point and will not change again unless Patient B is discharged from needing s.117 aftercare or re-detained under a Qualifying Detention.
We recognise that practically, the situation on the ground on 1 April 2016 may not have reflected the strict legal position; i.e. that many CCGs continued to accept responsibility for patients that were discharged prior to 1 April 2013, even though they could have transferred responsibility to the CCG responsible for the area of GP registration. This difference in the position in practice and in the law may have created legitimate expectations; making clarity on responsibility as at 1 April 2016 less clear-cut.
Establishing historic responsibility before 1 April 2016 is more complex. Prior to 1 April 2013, the responsible CCG was fixed with that which was responsible for the geographic area where the patient was resident (i.e. living) immediately prior to a Qualifying Detention.
Between 1 April 2013 and 1 April 2016, the responsible CCG was the CCG responsible for the area where the patient was registered with a GP at the time of discharge. During this period, responsibility did not fix with the CCG responsible at discharge but moved with GP registration.
Therefore, although establishing current responsibility may be simple in law (it is fixed as at 1 April 2016), establishing practical responsibility and historic responsibility can be a difficult task and legal advice is likely to be required.
The law regarding LA responsibility is the same before and after 1 April 2016; that is the responsible LA responsible is that which is responsible for the geographic area in which the person was Ordinarily Resident immediately prior to Qualifying Detention. Ordinary Residence, for the purpose of s.117 disregards the deeming provisions.
The dramatic changes in this area of law over the last five years have been confusing and complex. However, the introduction of new CCG Regulations in March 2016 have not only simplified the process of identifying the responsible LA and CCG but they have also streamlined the provision of s.117 aftercare by ensuring that the test for LAs and CCGs is the same and therefore the responsible CCG and LA should be from the same geographic area and be used to working together. We should no longer have the potentially absurd situation where a LA in the North is being asked to team up with a CCG miles away in the South West to put together a package of aftercare for a patient.
The downside is that, if the patient moves areas upon discharge, the CCG and LA with fixed responsibility will be required to work with local providers that they may not be familiar with and may not already have a relationship with.
For example, if Patient A, upon discharge moves to Village Y which is outside of the geographic area of LA X and CCG X, LA X and CCG X will be required to work with the providers in Village Y to ensure Patient A continues to receive s.117 aftercare.
Although not ideal, this is the reality of the geographically mobile service user and is certainly better than the fluid situation that existed previously, where CCG's were spending time and money arguing over responsibility and potentially being asked to work with unfamiliar LAs miles away to agree a s.117 package for a service user.
The Care Act Statutory guidance has also cleared up confusion surrounding the application of deeming provisions to s.117 aftercare for local authorities, making it clear that deeming provisions will not apply. Although this clarity is welcome, one does wonder how someone can be Ordinary Resident (i.e. voluntarily settled) in a place that they have been actively placed in (potentially against their wishes). The introduction of the concept of Ordinary Residence (which is defined by its voluntary nature) but the refusal to extend deeming provisions to s.117 appears to have introduced a contradiction into the law which has not been addressed. This also effectively preserves the complex case law for determining ordinary residence of individuals who do not have capacity
Furthermore, the new CCG Regulations have also left some grey areas. In particular, there still appears to be some confusion over how persons discharged prior to 1 April 2016 should be treated. A strict legal interpretation would be that responsibility fixes with the CCG responsible for the geographic area in which the person was registered with a GP on 1 April 2016. However there are likely to be many cases where, between 1 April 2013 and 1 April 2016, a patient s.117 receiving ongoing aftercare has moved and re-registered with a new GP (thereby on a strict interpretation of the law in force at that time, transferring s.117 aftercare responsibility), however the CCG's involved have not taken advantage of this and the placing CCG has willingly retained legal responsibility. In such cases, it maybe arguable that the CCG that has retained responsibility has created a legitimate expectation that they will continue to pay for that person's s.117 aftercare (despite not being legally responsible). Such a position has not yet been explored by the courts and as such complex disputes regarding responsibility for s.117 aftercare, where the person was discharged prior to 1 April 2016, are likely to continue to arise.
Please contact Hannah Taylor if you wish to discuss Section 117 Aftercare Services further.
 Under s.3 (admission for treatment), s.37 (hospital order), s.45A (a hospital direction and limitation direction), s.47 (transfer from prison) and s.48 (transfer to hospital of prisoners on remand) if they are in need of such services.
 The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules (Amendment) Regulations 2016 No. 293
 R(Hertfordshire CC) v Hammersmith and Fulham LBC  EWCA Civ 77
 'Care and support statutory guidance', Paragraphs 19.43 – 19.44 https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance