R (Worcestershire County Council) v SSHSC [2021] EWCA Civ 1957

Ordinary residence and s117 JG was detained under s3 in Worcestershire (Area 1), discharged to residential care in Swindon (Area 2), detained again under s3 in Swindon and discharged again. The Court of Appeal held that: (1) Area 1's duty subsists until it comes to an end by a s117(2) decision that the patient "is no longer in need" of aftercare services (ordinary residence in area 2 when subsequently detained makes no difference); there had been no such decision so the duty continued throughout both the second period of detention and beyond. (2) Obiter, by the ordinary meaning of "ordinarily resident" and under the Shah test JG was ordinarily resident in Swindon immediately before the second detention, and there was nothing in subsequent caselaw (including Cornwall) or the Care Act 2014 amendments (including the change from "resident" to "ordinarily resident") justifying a different conclusion.

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.

The WLR Daily case summaries

[2022] WLR(D) 14^B

Court of Appeal

R (Worcestershire County Council) v Secretary of State for Health and Social Care

[2021] EWCA Civ 1957^B

Coulson, Carr, William Davis LJJ

2021 Dec 2; 22

Local government— Community care services— Discharged mental patient— Patient detained in hospital over two separate periods— Dispute as to which local authority responsible for cost of after-care services— Whether duty owed by originating local authority ceasing— Where patient ordinarily resident immediately before second detention— Mental Health Act 1983 (c 20), s 117 — Care Act 2014 (c 23), s 75

The patient, who had a diagnosis of treatment resistant schizoaffective disorder, first became known to the claimant local social services authority in around 2011 or 2012 when she was living in a local authority property in Worcestershire. Between March and July 2014 the patient was detained under section 3 of the Mental Health Act 1983 in a hospital in Worcester. In July 2014, pursuant to section 117 of the 1983 Act she was released to a care home in Swindon, and in February 2015 to a second care home in Swindon. The placements at both care homes were funded by the claimant. In May 2015 the patient was detained under section 2 of the 1983 Act in a hospital in Swindon, and in June 2015 under section 3 in the same hospital until she was discharged from detention in November 2015. She then remained an in-patient until August 2017, when she was discharged from hospital and thereafter received after-care services. A dispute arose as to where the patient was ordinarily resident immediately before she was detained under section 3 for the second time in June 2015, and which authority should pay for her after-care services from August 2017 when she left hospital. The Secretary of State initially determined that the patient was ordinarily resident in Swindon because that was where she was living immediately before her second period of detention, but reversed that decision on review and decided that the patient was in fact ordinarily resident in Worcestershire for fiscal and administrative purposes. The claimant sought judicial review of the Secretary of State’s review decision, contending that the interested party, the local social services authority for Swindon, should pay for the after-care services. The judge allowed the claim, finding that the patient had been ordinarily resident in Swindon immediately before her second period of detention and that the original duty to pay for the cost of the patient’s care owed by the claimant at the time of the patient’s first detention ceased when she was released from the second period of detention.

On appeal by the defendant—

Held, (1) appeal allowed. The duty under section 117 of the Mental Health Act 1983 subsisted until it came to an end by the communication of a decision by the local social services authority pursuant to section 117(2). There being no such decision, the duty continued throughout both the second period of detention and beyond. There was only ever one duty and, as long as the original duty subsisted, the question of competing duties did not arise. Moreover, the whole notion of an automatic change in the identity of the authority with the duty to provide after-care services, triggered by law rather than by a decision made by those actually involved in the care of the patient, was unrealistic and would be woefully uncertain. Accordingly the claimant was the relevant local authority with the duty to provide after-care services to the patient (paras 50, 55, 57–58, 99, 100, 101).

(2) The ordinary meaning of the words “ordinarily resident” led to the conclusion that the interested party owed the duty at the start of the patient’s second period of detention. The addition of the word “ordinarily” effected by section 75(3)(4) of the Care Act 2014 did not bring with it, as a matter of language, some sort of deeming provision whereby questions of actual residence were to be superseded by considerations of who might be fiscally or administratively responsible for the provision of the care services in question. A policy-driven approach was not justified in the present case where, on the Secretary of State’s own case, the 2014 Act and its amendments had expressly failed to implement the sort of policy being now urged upon the court (paras 60–63, 71, 79, 82, 95–98, 99, 100, 101).

R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] PTSR 1623, CA applied.

R (Cornwall Council) v Secretary of State for Health [2016] AC 137^B, SC(E) distinguished.

Decision of Linden J [2021] EWHC 682 (Admin)^M reversed.

Tim Buley QC (instructed by Treasury Solicitor) for the Secretary of State.

Lee Parkhill (instructed by Head of Legal and Democratic Services, Worcestershire County Council, Worcester) for the claimant local social services authority.

The interested party did not appear and was not represented.

Fraser Peh, Barrister

Referenced Legislation

Mental Health Act 1983 (c 20), s 117

Care Act 2014 (c 23), s 75

External links

Aftercare case summary. Luke Clements, 'What a mess - s117 ordinary residence (again)' (2/1/22) — "In a nutshell – and congratulations if you understand this: The Court of Appeal has reversed a High Court decision that reversed a decision of the Department of Health and Social Care (DoH) to revise the rules determined by the Court of Appeal in a 2011 judgment that affirmed a High Court decision which materially revised the previous rules, concerning the determination of which local authority is responsible for funding the aftercare of individuals who are eligible for support under section 117 Mental Health Act (MHA) 1983." (blog post's introductory paragraph)

Supreme Court case details page . You can watch a video of the 27/4/23 hearing online.

CASES DATABASE

Full judgment: BAILII

Subject(s):

After-care🔍
Community care🔍

Date: 22/12/21🔍

Court: Court of Appeal (Civil Division)🔍

Judicial history:

Cites:

R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77

Judge(s):

Coulson🔍
Carr🔍
William Davis🔍

Parties:

Worcestershire County Council🔍
Secretary of State for Health and Social Care🔍
Swindon Borough Council🔍

Citation number(s):

What links here:

Published: 12/1/22 11:37

Cached: 2024-12-26 10:33:45