What's ‘ordinarily resident’ for the purposes of Section 117 aftercare services and when does the duty arise?
In the case of R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care (Respondent) [2023] UKSC 31, the Supreme Court was asked to consider this very question.
By way of background, a local authority has a duty to provide aftercare services for someone who leaves hospital following a detention under section 117 of the Mental Health Act 1983 (MHA).
Aftercare services include accommodation and the main purpose of this service is to try and prevent a person from being detained again in the future. It will depend on where the person concerned is ‘ordinarily resident’ immediately before they are detained as to which local authority is responsible for providing the after-care services.
Background
In March 2014, JG was detained under section 3 MHA and treated in a hospital in Worcester.
Following discharge in July 2014, as JG was ‘ordinarily resident….immediately before being detained’ in Worcester prior to her discharge, it was Worcestershire County Council (‘Worcestershire’) which was responsible for her aftercare under section 117 MHA.
Upon this discharge, JG was deemed to lack capacity to decide where to live so a best interest decision was made that she should live near to her daughter in Swindon. As Worcestershire was responsible for aftercare, it funded the residential home in Swindon.
In June 2015, JG was sadly detained again under section 3 MHA in a hospital in Swindon.
JG was discharged for the second time in August 2017, which then led to a dispute over where JG was ‘ordinarily resident’ prior to her detention and who was responsible for her aftercare.
The Secretary of State for Health and Social Care (Secretary of State) initially concluded it was Swindon as this was where JG was living just before her second detention. However, Swindon sought a review of this decision, with the Secretary of State reversing their decision to conclude it was Worcestershire which was responsible.
On appeal at the High Court, it was held that Swindon was responsible. A subsequent appeal to the Court of Appeal held it was Worcestershire, so Worcestershire appealed to the Supreme Court.
Judgment
By way of a unanimous decision, the Supreme Court held that Swindon was responsible for the aftercare for JG under section 117 MHA.
Interestingly, the court disagreed with Worcestershire’s primary case in its appeal, that where there had been two or more periods of detention, the words ‘immediately before being detained’ will refer to the most recent period of detention and as such, Worcestershire’s duty will have ended when Swindon’s duty arose at the second discharge.
The Supreme Court’s view was that the approaches put forward by Worcestershire and the Secretary of State “fail to explain why, assuming it is not possible to have two concurrent duties under section 117, one duty ousts or prevails over the other”.
The Court did, however, support Worcestershire’s alternative argument that the duty to provide aftercare services ends when the person concerned is detained, which was the case with JG.
This was on the basis that the language in section 117(2) supports this: “i) upon a person’s second detention, he/she is no longer a person who has ‘ceased to be detained’ but a person who is detained in hospital; ii) it is implicit in the concept of aftercare that the duty does not apply to people who are currently detained receiving treatment but only to persons who have left hospital; and iii) the purpose of aftercare, to reduce the risk of readmission, makes no sense in the context of a person who has already been readmitted to hospital”.
Supreme Court's conclusion
The Supreme Court concluded that this meant that section 117 (2) duty will cease when the person concerned is no longer in need of aftercare services but also when they cease to be a person to whom section 117 applies.
This is because if someone is detained, they can no longer be someone who requires aftercare services.
The Secretary of State disagreed with this argument, putting forward that aftercare services don't cease during another period of detention, that planning is needed in preparation for discharge into the community. The Supreme Court rejected this argument on the basis that planning for discharge isn't the same as aftercare services.
In summary, the Supreme Court confirmed that a new duty arose after the second discharge and this was based on where JG was ‘ordinarily resident’ after the second detention, which was Swindon.
On looking at the argument for ‘ordinarily resident’ the Supreme Court held that the decision in R v Barnet London Borough Council Ex p Shah [1983] should be followed “ordinary residence’ must be (i) voluntarily adopted i.e not enforced presence by reason of, for example, kidnapping or imprisonment; and (ii) for settled purposes”.
It believed that JG’s decision to move to Swindon was made voluntarily albeit by those who had the power to make decisions on her behalf and it was also for settled purposes.
The Secretary of State argued that ‘ordinarily resident’ should be given a special meaning, as per the case of R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137 but the Supreme Court disagreed with this stating that Cornwall should be taken on the facts of that case alone and more importantly, section 117 itself does not suggest that ‘ordinarily resident’ should be given an alternative meaning.
Welcome ruling provides clear guidance to councils
This is a welcome ruling which provides clear guidance to those local authorities who face providing aftercare services under the s117 MHA. This has previously been an area for dispute especially given the financial implication on a local authority, but we now have guidance, particularly where someone has been subject to more than one detention.
If a dispute over s117 funding arises which prevents a care package being provided to meet a person’s needs – this can be legally challenged.
Find out more about Irwin Mithell's expertise in supporting families affected by decisions involving living arrangements on behalf of people who lack the mental capacity at our dedicated protecting your rights section.
