The Supreme Court on local authority responsibility for s.117 aftercare services

The Supreme Court has much-needed clarity as to the operation of s.117 of the Mental Health Act 1983, writes Lee Parkhill.

The issue in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31 was how s.117 operates so as to determine which local authority and NHS Integrated Care Board (‘ICB’) owe the duty to a particular patient. The issue is one of wide significance given the number of cases in which the duty arises each year, and the duty often involves funding expensive packages of care.

Section 117(3) provides that if, immediately before the patient was detained, they were ordinarily resident in England, the duty will fall on the council and the ICB for the area where the patient was ordinarily resident immediately before being detained.

There were two issues before the Court. First, there was the Secretary of State’s argument that ordinarily resident has a special meaning such that if a person is living in accommodation arranged by a statutory agency, pursuant to a duty which employs the ordinary residence concept (such as s.117), then the person is treated as ordinarily resident in the area of the statutory agency, regardless of where, in fact, they are residing.

The second issue was as to how any s.117 duty comes to an end. Before the Secretary of State’s determination in Worcestershire, it had been understood that a subsequent detention under s. 3 automatically cancelled any pre-existing s.117 duty. This understanding of the law was even reflected in the Secretary of State’s guidance. However, in the determination in Worcestershire, the Secretary decided that a subsequent detention did not automatically end any pre-existing s.117 duty. The Secretary of State’s view was that the s.117 duty could only ever end if the relevant council and ICB made a joint decision to discharge the duty, pursuant to s. 117(2).

Both of these issues arose in the determination issued by the Secretary of State in Worcestershire. The determination was made in a dispute between Worcestershire and Swindon Borough Council as to responsibility for a patient, JG. JG had lived in Worcestershire. She was detained under s. 3 of the 1983 Act and, on discharge, JG became entitled to s.117 after-care. It was decided that JG should be placed in a care home in Swindon, to be closer to her family. The placement was arranged and funded by Worcestershire, pursuant to its s.117 duty. After a period of time in Swindon, JG was again detained under s.3. When JG was discharged from the second detention, Worcestershire contended that a fresh s.117 duty had arisen. Asking the question: where was JG ordinarily resident before being detained on the second occasion? Worcestershire contended that the answer was Swindon.

Initially, the Secretary of State agreed, issuing a determination holding that Swindon owed the s.117 duty to JG. However, Swindon sought a review, and the Secretary of State then reversed his decision and, in doing so, said that:

1. when asking, at the point of discharge from the second detention, where JG was ordinarily resident before being detained, the answer should be Worcestershire despite JG in fact having been in Swindon. The rationale being that Worcestershire had arranged and funded JG’s accommodation and that, following the Supreme Court’s decision in R (Cornwall) v Secretary of State for Health and Somerset County Council [2015] UKSC 46, a person should be regarded as ordinarily resident in the area of whichever authority is arranging their accommodation pursuant to a statutory duty; and
2. Whether or not (1) was correct, Worcestershire’s duty from JG’s first detention continued because (a) Worcestershire had not formally discharged JG, and (b) JG’s second detention had not automatically terminated Worcestershire’s duty.

Worcestershire challenged the determination, bringing proceedings for judicial review.

At first instance, the High Court rejected the Secretary of State’s argument as to the meaning of ordinarily resident. The High Court held that if asking where JG was ordinarily resident before her second detention, the answer would be Swindon.

As to the continuation of Worcestershire’s duty, the High Court rejected Worcestershire’s argument that its duty had ended automatically when JG was detained for a second time. But, the Court held that Worcestershire’s duty had ended when JG was discharged from the second detention. The Court reasoned that, at the time of the second discharge, a second duty arose, which must cancel any prior duty.

On appeal, the Court of Appeal again rejected the Secretary of State’s submissions as to the meaning of ordinarily resident. However, the Court overturned the High Court’s decision as to the cessation of Worcestershire’s duty. The Court held that the only way in which a s.117 duty could end was by means of a formal decision to discharge the patient from s.117, pursuant to s.117(2) (which Worcestershire had not done).

The Supreme Court has joined the lower courts in rejecting the Secretary of State’s argument that Cornwall has given the term ordinarily resident a new meaning. The Court has confirmed that ordinarily resident continues to be a concept concerned primarily with the facts of where a person lives.

As to when, and how, the s.117 duty can end, the Supreme Court has upheld Worcestershire’s submission that any s.117 duty ends, automatically, when a person is re-detained under s. 3.

The Supreme Court’s judgment brings welcome clarity. Responsibility for many cases had been in doubt following the determination and the Court of Appeal’s judgment. The Supreme Court’s decision in effect endorses what had been understood to be the position before the determination: ordinarily resident has its well-established meaning (which focusses primarily on the place where a person lives), and a s.117 duty ends, automatically, when a patient is re-detained under s.3.

Lee Parkhill is a barrister at Cornerstone Barristers. He represented Worcestershire in the High Court and the Court of Appeal, and was led by Andrew Sharland KC in the Supreme Court.