Since responsibility for the provision of aftercare can have considerable resource implications and has given rise to frequent disputes over recent years, this decision is likely to have significant implications for Local Authorities and CCGs in determining where responsibility lies and crucially, when it may be ended, with further guidance now required in relation to the approach of Local Authorities.
In this briefing, we look at the Court of Appeal’s decision and its practical impact.
What was the case about?
This important case related to the application of s.117 of the Mental Health Act and the legal duty to provide aftercare, focusing on the identification of which Local Authority is responsible, based on how ordinary residence is assessed for the purposes of s.117(3)(a), which fixes the s.117 duty based on where any eligible patient was ‘ordinarily resident…immediately before being detained’.
The Court of Appeal was asked to determine how ordinary residence should be assessed when a person, already in receipt of s.117 services, moves to a different Local Authority area and is then re-detained under a s.3.
The patient involved in this case, JG, has a diagnosis of schizoaffective disorder requiring periods of treatment in hospital under s.3 of the MHA. JG was first detained on a s.3 in 2014, at which time she was ordinarily resident in Worcestershire. On discharge from hospital, she was placed by Worcestershire County Council (‘Worcestershire’) in a care home in Swindon, under s.117, funded by Worcestershire. She was subsequently moved to a second care home in Swindon, still funded by Worcestershire under s.117.
However, in 2015 JG was re-detained on a s3. During the period she was in hospital, Worcestershire terminated the placement in Swindon by standard termination notice which made no reference to s.117 or to any decision that JG was no longer in need of aftercare services. When JG was ready for discharge again from hospital, an issue arose as to which body was responsible for her s.117 aftercare following this second admission and the Secretary of State was asked to determine responsibility in accordance with the dispute resolution process (under s.40(1) of the Care Act 2014). Initially, the Secretary of State decided in favour of Worcestershire, on the basis that the s.117 responsibility had shifted to Swindon Borough Council (‘Swindon’) since JG was ordinarily resident in Swindon immediately before the second detention, in accordance with the Secretary of State’s statutory guidance. This was challenged by Swindon and, on review, the Secretary of State reversed his decision (February 2020), finding that s.117 responsibility remained with Worcestershire, in part because it was decided that JG’s ordinary residence remained with Worcestershire despite the move to Swindon, which the Secretary of State accepted was contrary to his own guidance, which would be amended (although no such amendment has happened as yet, pending the outcome of the Court of Appeal case).
Worcestershire then sought a judicial review of this decision in the High Court, which was successful, but was appealed by the Secretary of State to the Court of Appeal, with Swindon as an interested party. In the interim, guidance was issued by the Secretary of State indicating that any disputes on similar points would not be considered until the outcome of the appeal.
The issues in this case are complex, but in summary:
The Secretary of State’s determination in February 2020 that Worcestershire remained responsible for JG’s s.117 aftercare had been based on three grounds, referred to by the Court of Appeal as propositions 1 - 3.
- Proposition 1 - That (contrary to the Secretary of State’s own guidance) JG’s ordinary residence remained with Worcestershire, since they placed JG in Swindon and remained fiscally and administratively responsible for JG even though she clearly no longer lived in Worcestershire.
- Proposition 2 - That ordinary residence ‘immediately before being detained’ relates to the first time the patient is detained on a relevant section (s.3), rather than where the patient was ordinarily resident immediately before the most recent detention, so that effectively the relevant body remains the same, regardless of any change in residence and re-detention, unless and until the s.117 duty ends.
- Proposition 3 - Alternatively, that the duty on Worcestershire was not terminated by the further detention (and ‘fresh’ s.117 entitlement) and so continued even though JG’s ordinary residence had changed to Swindon immediately before she was re-detained.
In quashing this decision on judicial review on the basis that it was wrong in law and therefore finding that Swindon was the responsible authority, the High Court held that:
- Proposition 1 - The determination of ordinary residence is made applying common law rules and JG had acquired an ordinary residence in Swindon.
- Proposition 2 - The relevant responsibility for s.117 is established on the basis of ordinary residence immediately before each relevant detention, and does not relate back to the initial detention.
- Proposition 3 - The duty on Worcestershire was terminated by operation of the law once the ‘fresh’ s.117 duty on Swindon was triggered on JG’s discharge from hospital.
On appeal to the Court of Appeal, the Secretary of State did not pursue Proposition 2, but appealed on the other two grounds.
What did the Court of Appeal decide?
The Court of Appeal found that Worcestershire remained the body responsible for the ongoing provision of aftercare to JG, on the following basis:
- Proposition 3 should be addressed first, since if Worcestershire’s s.117 duty to provide aftercare services had not in fact been terminated by operation of the law on discharge from hospital after the second detention, then it continued regardless of whether or not JG had gained ordinary residence in Swindon. The Court of Appeal disagreed with the High Court that the duty on Worcestershire had been terminated by matter of law and, since it was agreed that it had not in fact been terminated by Worcestershire deciding that s.117 aftercare was no longer needed, then it must continue, meaning that Worcestershire remains the body responsible for the ongoing provision of aftercare to JG, unless and until this duty is terminated by the agreement of Worcestershire and the relevant CCG as aftercare bodies (s.117(2)).
- Although this meant the responsibility remained with Worcestershire in any event, because of the importance of the issue, the Court of Appeal did go on to consider Proposition 1, deciding that the High Court had been correct in determining that JG had acquired an ordinary residence in Swindon on the application of usual common law rules and that the Supreme Court ruling in the Cornwall case ( AC 137) does not apply when determining ordinary residence for s.117 purposes.
This case raises a number of issues from a practical perspective. Bearing in mind the level of confusion and disputes that have arisen in relation to the s.117 duty over recent years, it is crucial that we have some clarity, so that, although there will inevitably always be disputes that arise on the facts of individual cases, we are clear how the legal framework applies.
In particular there is likely to be a considerable focus, moving forward, on when and how the s.117 duty should be terminated, since the Court of Appeal judgment focused on the fact that Worcestershire’s s.117 duty had not been terminated, leaving the responsibility with Worcestershire. Had Worcestershire’s duty been terminated, then the ‘fresh’ s.117 responsibility would have passed to Swindon. It seems likely then that Local Authorities in similar circumstances will be giving very careful consideration to when the duty can be ended.
Whilst this case may have less of a direct effect from a CCG perspective, since the identification of the funding CCG post September 2020 is established through the process set out in the Who Pays Guidance, it will be important for CCGs to be clear in relation to the impact of the decision, not least because of the likely focus on how the duty can be terminated, which requires a joint decision by the relevant s.117 bodies.
Further statutory guidance will now presumably be issued by the Secretary of State. Relevant s.117 bodies and those with responsibility for s.117 ‘on the ground’ will need to get to grips with the impact of this judgment and revise policies/processes as appropriate.
It remains to be seen to what extent this decision and revised guidance gives much needed clarification, or whether it simply raises further questions and issues in practice.
As highlighted in the White Paper on reforming the Mental Health Act: “Section 117 aftercare was introduced to the act in 1983 to provide patients with a statutory right to aftercare following discharge from the act. While this provision places a duty on health and social care systems, the review highlighted that there has been a lack of clarity over who is responsible for providing and funding the care and in which locality. This results in delays to providing care to potentially highly vulnerable people”. Ultimately, whether the Court of Appeal’s decision is the last word in this case or not, we are still left with a complex and confusing legal position around responsibilities for s.117 aftercare, which needs legislative clarification to avoid further time and money being spent by Local Authorities and CCGs arguing amongst themselves.
How we can help
Our national team of mental health specialists has extensive experience in advising health and social care providers and commissioners in relation to all aspects of s.117 aftercare, including disputes between Responsible Commissioners, and disputes with individuals regarding their entitlement to s.117 funding.
We can provide bespoke training in relation to all aspects of the Mental Health Act, including issues arising out of s.117 from an NHS and Local Authority perspective.