The Supreme Court's judgment today in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care allowed Worcestershire County Council's appeal. The court found that the local authority was not responsible for providing after-care services to a service-user detained under the Mental Health Act 1983 following her second discharge from hospital.
The Supreme Court's 2 key findings
- The duty under s. 117 of the Mental Health Act 1983 to provide after-care services automatically comes to an end if the person is again detained under s. 3 of the Act.
- Ordinary residence under the Mental Health Act 1983 is not deemed to remain with the placing authority when that after-care is provided in another local authority's area.
Background to the case
The issue was which local authority was responsible for providing after-care services to someone who has been detained under s. 3 Mental Health Act 1983.
By s. 117(3), the responsible authority is the one where the person was ordinarily resident immediately before being detained. Where there is a dispute about ordinary residence that falls to be determined by the Secretary of State.
In this case, the complication arose because the person (JG) had been detained twice.
On the first discharge, Worcestershire County Council was the responsible authority and JG was assessed as lacking capacity to decide where to live. Following consultation with her daughter and others involved with her care, it was considered in JG's best interests for her to live near her daughter. Therefore Worcestershire placed her in a residential care home in Swindon.
When she was then detained again, Worcestershire County Council argued that Swindon Borough Council was now the responsible authority.
However, the Secretary of State determined that Worcestershire County Council remained the responsible authority on the basis that its placement of JG in another area did not affect her ordinary residence.
Worcestershire brought a claim for judicial review of that decision and succeeded at first instance. The Court of Appeal overturned that result holding that once the duty under s. 117 had arisen, it only ended when the authority decided that after-care services were no longer required.
Impact of the Supreme Court's judgment
The Supreme Court’s decision effectively restores the position to what it was before the Secretary of State’s determination in this case.
The Secretary of State had interpreted the Supreme Court’s decision in the case of R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46 as applying to ordinary residence for s. 117. That was rejected and it is now clear that the principle established in Cornwall that a period of residence should be ignored where it was in a placement provided pursuant to a statute applied only where there was an express deeming provision to that effect. There is no such deeming provision in s.117.
The judgment provides welcome clarity. It probably limits the Cornwall principle to cases involving the transition from care being provided under the Children Act 1989 to care being provided under the Care Act 2014.
Read the full judgment in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31