Starting afresh: determining the responsible local authority for section 117 aftercare following the Supreme Court’s judgment in the Worcestershire case

The Worcestershire case has finally come to a conclusion following the Supreme Court’s judgment on 10 August 2023[1]. The facts of the case, which concerns an individual known as ‘JG’, are well known and are detailed in our previous article.

In summary, the Supreme Court has overturned the decision of the Court of Appeal, finding that local authority responsibility for section 117 aftercare will reset where an individual in receipt of aftercare services is re-detained under a qualifying provision of the Mental Health Act 1983 (the “MHA 1983”). Responsibility for section 117 aftercare will depend on where the person was “ordinarily resident” immediately before the most recent detention.

Before we unpick the Supreme Court’s judgment it is helpful to first look back to the procedural history.

1. A brief re-cap – the procedural history

 The Worcestershire case was first heard by the High Court in 2020[2] when Linden J held that:

• the responsible local authority for section 117 aftercare is to be determined by where the individual was ordinarily resident immediately before each detention. Therefore, if a person has a subsequent qualifying detention under the MHA 1983, responsibility would be determined by reference to where the person was ordinarily resident prior to that detention – in other words, responsibility would reset.
• in order for responsible bodies to discharge their duties under section 117, a decision needs to be made that the individual no longer has section 117 needs. However, just because a formal decision to discharge a patient from section 117 aftercare has not been made does not mean that responsibility would continue with the previous responsible bodies where an individual is re-detained under a qualifying detention.

For further information on the decision of the High Court, please see our article.

The Secretary for Health and Social Care (the “H&SC Secretary”) appealed the decision of the High Court and the appeal was heard by the Court of Appeal in December 2021[3]. In summary, the Court of Appeal overturned the decision of the High Court. It held that responsibility for section 117 aftercare would continue until such time as a formal decision was reached that the individual concerned no longer had a need for section 117 aftercare. The Court of Appeal held that this duty would survive out of area placements, changes in ordinary residence and subsequent re-detentions under the MHA 1983.

For further information on the decision of the Court of Appeal, please see our article.

2. Discharging the section 117 duty – the Supreme Court’s decision

 The grounds of appeal:

Worcestershire County Council put forward two alternative grounds of appeal:

• the duty to provide section 117 aftercare services for JG ended upon her being discharged from her second qualifying detention under the MHA 1983; or in the alternative
• the section 117 aftercare duty ended when JG became re-detained under a qualifying detention under the MHA 1983.

The H&SC Secretary opposed these grounds. The H&SC Secretary also brought a cross-appeal and argued that the fiscal and administrative policy considerations set out in the Cornwall[4] case (that not deeming responsibility to the original local authority would encourage placement out of area) should be read across to section 117 aftercare. This would mean that JG was not ordinarily resident in Swindon immediately prior to her second qualifying detention under the MHA 1983 – put simply, Worcestershire would retain responsibility for JG’s section 117 aftercare as the placing authority. (For more information of the Cornwall case see our article).

The Supreme Court’s judgment:

The crux of the Supreme Court’s judgment rested in the language and purpose of section 117 of the MHA 1983. Worcestershire County Council’s appeal was successful on the second ground of appeal i.e. that the section 117 duty came to an end when JG became re-detained under a qualifying section of the MHA 1983.

The Supreme Court held that the duty under section 117(2) of the MHA 1983 is to provide section 117 aftercare services “for any person to whom this section applies.” The Supreme Court concluded that this duty would cease when:

• the responsible bodies made a decision that the person no longer had a need for section 117 aftercare; and/or
• when the person ceases to be a person to whom section 117(2) of the MHA 1983 applies.

Where a person becomes re-detained under a qualifying section of the MHA 1983 they no longer fall within the categories of persons falling within the scope of section 117(2) and consequently cease to be person to whom this section applies[5].

The Supreme Court also made it clear that an admission to hospital pursuant to section 2 (admission for assessment) of the MHA 1983 or a voluntary admission would not bring a person outside the class of persons eligible for section 117 aftercare and as such, a person would not lose their right to section 117 aftercare in those circumstances.

In conclusion, the Supreme Court held that the duty to provide section 117 aftercare automatically ceases if and when the person is re-detained under a qualifying provision of the MHA 1983 or where the responsible bodies make a decision that the individual no longer has a need for section 117 aftercare.

3. Impact on ordinary residence

The Supreme Court went on to consider the H&SC Secretary’s cross-appeal which sought to argue that the fiscal and administrative policy considerations (i.e. a desire not to encourage out of area placements) set out in the Cornwall case should apply to section 117 aftercare – the effect being that where an individual is placed out of area by a local authority exercising its section 117 duty, then that placement should be disregarded when considering ordinary residence.

This ground of cross-appeal was firmly rejected by the Supreme Court for the following reasons:

• the Cornwall case concerned the deeming provisions under the National Assistance Act 1948, Children Act 1989 and Care Act 2014 and there are no such deeming provisions in the MHA 1983 or similar provision;
• the Hertfordshire[6] case affirmed that the duty under section 117 of the MHA 1983 is a standalone duty and so the deeming provisions set out in the National Assistance Act 1948, Children Act 1989 and Care Act 2014 cannot be read across to the MHA 1983; and
• when Parliament amended section 117 of the MHA 1983 in 2014 so that the concept of “residence” was replaced with that of “ordinary residence” it did no more than that.

Therefore for the purposes of determining ordinary residence under the MHA 1983, ordinary residence should be given its ordinary meaning as set out in the case of Shah[7].

4. Practical implications

The legal background to the Worcestershire case is complex however, the key point to take away from the Supreme Court’s judgment is that local authority responsibility for section 117 aftercare will reset where an individual in receipt of aftercare services is re-detained under a qualifying provision of the MHA 1983.

In addition, when considering an individual’s ordinary residence, local authorities should apply the Shah test i.e. the person’s abode which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether of short or long duration. When a person lacks capacity, the Supreme Court held that an adapted Shah test needed to be applied and the state of mind of the decision maker needed to be considered instead. For JG, the Supreme Court held that her residence in Swindon had been “adopted voluntarily in the relevant sense, as it was the result of a choice made on her behalf to live in the accommodation that Worcestershire provided for her following the first discharge.” This suggests where a best interest decision regarding residence has been validly made, the placement will have been ‘adopted voluntarily’ for the purpose of the Shah test.

The impact of this decision will likely result in a number of local authorities (who retained responsibility for an individual’s section 117 aftercare on the basis of the Court of Appeal judgment) now seeking to transfer the section 117 duty to a different local authority as the person receiving section 117 aftercare moved to a different area and was re-detained. Where this is the case, local authorities should bear in mind the key principle that an individual’s care should not be prejudiced as a result of an ordinary residence dispute and local authorities should follow the dispute process set out in the Care and Support (Disputes between Local Authorities) Regulations 2014.

It should be noted that the Department of Health and Social Care confirmed that any ordinary residence disputes requiring determination by the H&SC Secretary would be stayed pending the Supreme Court’s decision and we anticipate that the Department will be issuing an update in due course.

In the meantime, we will be considering the implications of the Supreme Court’s judgments on determining the responsible health commissioner which is underpinned by the National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022 which came into force on 1 July 2022. We will circulate an article on this issue, and how health and social care bodies can work together in circumstances where the provisions for determining responsibility are different, shortly.

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.

 

[1] R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.

[2] The Queen (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care v Swindon Borough Council [2021] EWHC 682 (Admin).

[3] The Queen (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care v Swindon Borough Council [2021] EWCA Civ 1957.

[4] R (on the application of Cornwall Council) v Secretary of State for Health [2015] UKSC 46.

[5] Paragraph 49 of the Supreme Court judgment.

[6] R (Hertfordshire County Council) v Hammersmith and Fulham LBC [2011] EWCA Civ 77.

[7] R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309.