How sticky is a Local Authority’s Section 117 Duty? Very sticky according to the Court of Appeal in Worcestershire

An Overview of the Court of Appeal’s Decision in Worcestershire and the implications for Section 117 Aftercare Responsibility

The Court of Appeal’s recent decision in Worcestershire makes fundamental changes to how local authorities should determine responsibility for Section 117 aftercare. Most importantly, the Judgment held that a local authority’s duty to provide section 117 aftercare continues until that local authority takes a decision that there is no longer a need for aftercare services. This may seem innocuous and in line with the wording of Section 117; however, the Court of Appeal took this a step further. The Court held that, in the absence of such a decision to bring that duty to an end, that duty will continue through subsequent detentions under the Mental Health Act even if a person becomes ordinarily resident in the area of another local authority. In simple language, a local authority’s duty to provide Section 117 aftercare services has just become a lot stickier! It will stick with the originating local authority even if a person moves between areas and is re-detained.

Background

In 2014, JG was detained under Section 3 of the Mental Health Act whilst living in Worcestershire. She was moved to a residential placement in Swindon so that she could be closer to her daughter before being discharged to a care home, also in Swindon. Approximately a year later, she was detained again under Section 3 Mental Health Act to a hospital in Swindon. Following this second detention a dispute arose between Worcestershire and Swindon as to which local authority was responsible for her Section 117 aftercare going forwards.

The dispute was referred to the Secretary of State for determination. The Secretary of State held, in accordance with his own guidance, that JG was ordinarily resident in Swindon because that is where she was living immediately before her second period of detention. Swindon requested a review of this decision and the Secretary of State reversed his decision (contrary to his own guidance), deciding that JG was in fact ordinarily resident in Worcestershire for fiscal and administrative purposes.

This decision was successfully challenged by Worcestershire by way of judicial review. This application was successful as the High Court held that the three propositions on which the Secretary of State based its reversal were wrong and that JG was ordinarily resident in Swindon. (For further information on the decision of the High Court, please see our article here.)

The Decision of the High Court was appealed by the Secretary of State to the Court of Appeal. It was the Court of Appeal’s judgment that was published in December 2022.

The Court of Appeal’s Decision

There were two grounds of appeal for the Court to consider. First, the Secretary of State argued that the High Court had wrongly decided that JG was ordinarily resident in Swindon. Second, he argued that the High Court was wrong to determine that Worcestershire’s duty to provide aftercare services ceased by operation of the law at the moment JG was released from her second period of detention. The Court dealt with the second ground first.

(i) When does the Section 117 cease?

In the High Court, the Judge found that Worcestershire’s section 117 aftercare duty had terminated when JG had been released at the end of her second period of detention as this was the point she ceased to be detained and the section 117 duty kicked in. By this point, the answer to the question of ordinary residence in Section 117(3), used to identify who is responsible for this duty had changed; JG was now ordinary resident in Swindon as opposed to Worcestershire.

The Court of Appeal concluded that this approach was incorrect principally because it was not rooted in the words of the 1983 Act. The Court of Appeal focussed on the wording of Section 117(2) that the duty continues “until such time as” the authorities “are satisfied that the person concerned is no longer in need of any after-care services.” Lord Justice Coulson held,

“The duty rested with Worcestershire until it came to an end either on the facts or as a matter of law. There is nothing in s.117 that could permit this court to conclude that, absent any decision by Worcestershire under Section 117(2), the fact JG had become ordinarily resident in Swindon immediately prior to the second period of detention somehow gave rise to a competition, and switched the relevant duty from Worcestershire to Swindon.”

Therefore the original duty subsisted until and unless a formal decision was reached that a person no longer required section 117 aftercare. This original duty survives out of area placements, changes in ordinary residence and subsequent re-detentions. The Court of Appeal held that this was the common sense approach for continuity of care and care planning as it would be unsatisfactory for a person to lose the support of the existing commissioning body at the point of detention as this was the time that they required the services the most.

Interestingly, the Court of Appeal felt that the appellant’s success on this second ground of appeal was sufficient to overturn the High Court’s decision and therefore it was not strictly necessary to deal with the first ground of ordinary residence. It did however move on to do so on the basis that this was an issue of importance.

(ii) Ordinary Residence

In summary, the Court of Appeal held that JG was ordinarily resident in Swindon. The starting point for the court’s decision was the ordinary meaning of the words ‘ordinarily resident’. The Judge held that if you had asked where did JG live before her second detention in Swindon, the answer would be Swindon. The Court also held that this would have been the answer if you had applied the leading authority of Shah which refers to “a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether or short or of long duration.”

The Court of Appeal held that the Supreme Court case of R (Cornwall Council) v SSH [2015] UKSC 46  did not change this conclusion as the Cornwall case considered different legislative frameworks (for more information on the Cornwall case, see our article here)

Practical implications

There are many nuances to the Worcestershire case and the complex legal background to the proceedings and the issues raised can feel overwhelming. However, the key point to take away from the Court of Appeal’s decision is that local authority responsibility for Section 117 responsibility now sticks with the originating section 117 local authority and that stickiness will survive an out of area placement, subsequent detentions under the Mental Health Act and any changes in the person’s ordinary residence.

It is now therefore hugely important for local authorities to develop a clear process for formal decisions to terminate section 117 support when the need for section 117 aftercare is no longer present. If the duty is not formally ceased, it will continue to run and a local authority could stay responsible for aftercare in the future if there are further detentions under the Mental Health Act.

However, it is also important to note that an application has been made by Worcestershire County Council to the Supreme Court for leave to appeal and the decision on this is pending.

In terms of current and new local authority disputes involving ordinary residence and multiple detentions, the Department of Health and Social Care has confirmed that these cases will continue to be stayed until there is a final decision from the Supreme Court. However, disputes must still be referred to the Secretary of State if the local authorities in dispute cannot resolve the dispute within four months.

If you do find yourself with a dispute raising issues similar to those in Worcestershire, you should seek legal advice on what steps you may need to take to protect any potential claim pending the decision of the Supreme Court.

At Bevan Brittan, we regularly advise on complex section 117 aftercare disputes. If you would like more information, please contact Anna Davies or Ruth Atkinson-Wilks.