Social Welfare Update: High Court holds a patient was "ordinarily resident", for the purposes of funding s 117 aftercare, in second local authority's area immediately before second period of detention

Factual background

Worcestershire County Council applied for judicial review of the Secretary of State's (“SoS”) decision that it, rather than Swindon, was liable under s 117 Mental Health Act 1983 (“s 117 MHA 1983”) to pay for the after-care of a patient (JG) following her discharge from hospital in Swindon.

JG was living in Worcestershire when she was detained in hospital under s 3 MHA 1983 in March 2014. In July 2014 she was discharged to a care home in Swindon. On the discharge she was in receipt of after-care pursuant to s 117, and located there to be near to her daughter. JG's after-care and care home placement were funded by Worcestershire even though she was living in the Swindon area.

In June 2015, JG was again detained under s 3 MHA 1983 in a hospital in Swindon. JG was discharged from detention in hospital in November 2015 but remained in hospital until August 2017.

In respect of the funding of after-care, a dispute arose as to where JG was "ordinarily resident" "immediately before being detained" for the purposes of s.117(3) MHA 1983 after-care, and which local authority should fund JG's after-care from August 2017.

The SoS determined, in the statutory appeal process, that JG was ordinarily resident in Swindon, on the basis that this was where she was living immediately before the second period of detention. This decision was in accordance with the SoS’s "Care and support statutory guidance". Swindon sought a review of that decision and the SoS, on the review, decided that JG was, instead, ordinarily resident in Worcestershire. The SoS's decision was based on 3 propositions:

1. that JG, although physically present and resident in Swindon immediately before the second period of detention in June 2015, should be regarded as being ordinarily resident in Worcestershire, as Worcestershire had placed her in Swindon pursuant to its obligation under s.117 MHA 1983 following the first period of detention, applying the approach in R. (on the application of Cornwall Council) v Secretary of State for Health [2015] UKSC 46, [2016] A.C. 137 (“Cornwall Case”);
2. that where there had been a period of detention, immediately followed by a period of after-care services, immediately followed by a second period of detention, the words "immediately before being detained" in s.117(3) MHA 1983 required a construction that a decision was to be made as to the ordinary residence of the person immediately before they were first detained, rather than immediately before their most recent period of detention; and
3. that Worcestershire had never made a decision required under s.117(2) MHA 1983 that JG was no longer in need of after-care services so that its duty to provide after care arising out of JG being released from her first period of detention continued notwithstanding her second period of detention in the Swindon area.
    

The decision of the Court

On allowing Worcestershire’s claim for judicial review the Court held the following

On the applicability of the Cornwall case, this was a case under the Children Act 1989 (“CA 1989”) and the National Assistance Act 1948 (“NAA 1948”). The court further noted that the decision in R. (on the application of M) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 (“R(M)”) was against any argument that the approach to the question of ordinary residence under the NAA 1948 and, thus, the Care Act 2014 or the CA 1989, could be applied to MHA 1983.

In Cornwall the Supreme Court did not consider the nature of ordinary residence under the MHA 1983 other than in references to R (M). The court held that those references did not suggest that R (M) was wrongly decided but rather that the position under NAA 1948 and CA 1989 should not necessarily be read across to the MHA 1983. The reasoning behind this was, not only that the relevant terms of the MHA 1983 were different (for example the lack of an equivalent to the disregard or deeming provisions in respect of accommodation in s 24(5) NAA 1948 and s 105(6) CA 1989) but also because s.117 MHA 1983 was free -standing and served a different category of person, with different needs, to those who were served by the care and support legislation.

The court held that in the true application of the Cornwall case it did not support the first proposition for the basis of the SoS’s decision on review. The court noted that the Care Act 2014 had not materially altered the law so as to reverse the result in R (M). The changes in the Care Act 2014 did not include any provision to the effect that ordinary residence would always have the same meaning under that Act and MHA 1983 and still less that accommodation provided under the MHA 1983, as opposed to detention under s 3, should not affect the ordinary place of residence or the duty to provide after-care services under s 117. As such the court held that the SoS’ first proposition was wrong in law.

Further, the court held that s 117 was not ambiguous or unclear. S 117 was clear that on each occasion that a person was to cease to be detained under s.3 and was to leave hospital, the responsibility for the services to be provided after that period of detention would fall on the area in which they were ordinarily resident when the decision to detain them was made, namely immediately before that period of detention. Further, the court held if it had determined the wording of s 117(3) was ambiguous it would have held that the policy considerations as to identification of ordinary residence which underpinned identification of ordinary residence for the purposes of the Care Act 2014 and CA 1989 would not be applicable to the MHA 1983 and thus the different test would apply

On the issue of Worcestershire’s failure to make a specific decision to discontinue after-care services, the court held that s 117(2) required the clinical commissioning group or Local Health Board and the local social services authority to make a decision to discontinue the provision of after-care services, even where there was a subsequent detention under s 3.  Worcestershire had not made that decision. Nevertheless, the court held that when there was a second period of detention under s 3, the duty to provide and fund after-care services would have to be considered afresh when the person left hospital.

The court held that the local authority identified by s.117(3) in respect of the second detention under s 3 detention would owe the duty to provide after-care services arising out of that period of detention. If, at that point, the answer to the s.117(3) question had changed because immediately before the second period of detention the person was no longer ordinarily resident in the area of the first local authority which previously provided after-care services. Then the result would be that the first local authority would no longer owe the s.117 duty arising out of the second period of detention. The court held this process had happened in the instant case. As a result, the court held the SoS was wrong to find that Worcestershire had any duty to provide after-care services to JG after Swindon's duty to provide such services was triggered by the second period of detention.

For all these reasons the court quashed the decision and identified JG was ordinarily resident in Swindon.

The Secretary of State is seeking permission to appeal this decision from the Court of Appeal.
 

Comment

This case provides welcome clarification of the law and approach the Secretary of State should take in resolving disputes between Local Authorities in respect of their contribution to the costs of services post-detention under the MHA 1983. It may not be that this is the end of such disputes, for example if the person discharged had only been in the community for a very short period of time in the second local authority area, and there was no 117(2) decision by the first authority. In addition, s 117 after-care concerns needs arising from or relating to the person’s mental disorder and hospital admission. It is therefore important to recognise that an individual may have care needs which fall outside the scope of s 117 and the after-care plan. This may relate to a physical disability or illness that has no direct bearing on the person’s mental health and purpose behind 117 after-care and thus there may be cases of a person being s 117 eligible as well as having additional care and support needs falling outside s 117 but that will be met under the Care Act 2014 subject to eligibility criteria being met.

Thus there could be a role for original authorities in another similar two- authority scenarios, as for the purposes of the Care Act 2014 you can never acquire ordinary residence in hospital because of the deeming provision that excludes consideration of time spent in hospital.