Oh look, here’s yet another case of local authorities taking
each other to court over who is responsible for funding Sec.117 aftercare. This
is very recent, published on 29.10.14.
Why are local authorities prepared to spend thousands of
pounds on legal fees in such cases? The simple answer is that the cost of
aftercare for these patients can be extremely expensive.
Take this case, [2014]EWHC 3557 (Admin), as an example.
The dispute between Worcestershire and Essex centred around
a young woman known as VC. She had an acquired brain injury at the age of 5,
and this resulted in serious behavioural disturbance. As a result, she was
accommodated in a range of establishments provided by Worcester . These included living for 2 years
in a small home for young people up to 18. Although the home was intended to
have four residents, VC was so disruptive that all others were moved out and
she remained with up to 7 staff looking after her alone.
Her care was obviously costing Worcester a great deal of money.
She was then moved to Oaktree Manor, a hospital in Essex for people with learning difficulties. Although she
was initially admitted as an informal patient, she was subsequently detained
under Sec.2 after her behaviour deteriorated, and then under Sec.3. She
remained detained under Sec.3 for nearly a year.
However, the Judge concluded:
“The context and purpose of s117 point in my judgment to an
interpretation that is as straightforward as possible, the residence of a
person being prima facie the place in which he was in fact living eating and
sleeping immediately prior to his detention.”
This was regardless of issues of capacity, and hung on the
fact that at the time VC moved to the hospital there was no other place which
could be regarded as her normal residence, as she could not return to any of
her previous placements.
In this case, Worcester
saved itself a great deal of ongoing expenses.
Those who have read my recent post, on the changes to
Sec.117 imposed by the Care Act 2014, will already be wondering if this would
change the outcome of this case.
The Judge in this case has anticipated this. He observes:
“The matters in issue in this case will not arise in future,
because s117 has been amended by the Care Act 2014 to provide for a regime of
long term responsibility of an authority, rather than one which may shift as a
patient moves around the country.”
But he also observes that previous statute does not permit
this interpretation in this case.
Will the Sec.117 changes to the concept of “ordinary
residence” prevent these sorts of disputes in future? When so much expense is
at stake, I wouldn’t count on it.
Am I confused or what? My quick take on the Care Act amendment - [from this blog] and from the 2nd quoted remark from this judgement - was that responsibily would no longer shift around the country from placement to placement UNLESS the person lived OUTSIDE institutional care at any point. Am I wrong or am I wrong??
ReplyDeleteThe Care Act doesn't come into force until some point in 2015, so now's the time for local authorities to inappropriately place people out of area, do nothing as the placement breaks down, insist that the local authity in which they are placed undertakes the MHA assessment (s.13) and then wash their hands of any responsibility whatsoever.
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