JG, section 117 and ordinary residence: recent case law from the Supreme Court

 

S.117 of the Mental Health Act 1983 stipulates the important duty for local authorities and the NHS to provide aftercare for patients who are ordinarily resident in their area and have been detained for treatment under s.3 (as well as some Part 3 sections relating to patients convicted of criminal offences).

Over the years, local authorities have often sought to shift this responsibility. This is usually because the cost of providing residential aftercare can be extremely expensive. I have covered some of the case law arising from these disputes on the Masked AMHP blog.

Often these disputes have arisen due to the interpretation to the term “ordinarily resident”.

In order to reduce the need for local authorities to go to the High Court to challenge decisions relating to aftercare, the Care Act 2014 amended s.117 MHA with the intention of clarifying the definition of “ordinarily resident”.

S.117(3)(a) laid this responsibility on the services where:

 “if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident”.

This duty then continued until it was agreed that there was no further need for aftercare services to be provided.

This was generally interpreted as meaning that the local authority where the patient was living at the point of their first detention under s.3 retained the responsibility for s.117 aftercare regardless of where the patient might be living at the time of any subsequent detention under s.3.

This brings me to the case of JG, who was the patient for whom a dispute arose between Worcestershire and Swindon over who was responsible for providing aftercare in her case.

JG had a diagnosis of schizoaffective disorder and was ordinarily resident in Worcestershire. In March 2014 she was detained under s.3 in that area.

As it was deemed that she lacked the capacity to make decisions about where she should live following discharge, it was arranged for her to be placed in a care home in Swindon, near to where her daughter lived.

In May 2015 she was admitted to a hospital in Swindon under s.2 MHA, and this was subsequently detained under s.3.

A dispute arose between Worcestershire and Swindon over where she was “ordinarily resident” at the time of her second detention under s.3, and therefore who was then responsible for aftercare.

The dispute was first considered by the Secretary of State, who concluded that JG was ordinarily resident in Swindon and therefore they were the responsible local authority. This was in accordance with guidance on interpretation of ordinary residence.

Swindon then requested a review of this decision, at which point the Secretary of State reversed the decision, concluding that Worcestershire was in fact still responsible.

Guess what? Worcestershire went to the High Court to challenge this decision, and in 2021 the judge overturned this decision, reasoning that:

“JG was ordinarily resident in Swindon immediately before the second detention so that the second discharge triggered a duty on Swindon to provide after-care services for her; that it could not have been intended that Worcestershire’s duty to provide after-care services consequent on the first discharge should continue in parallel once Swindon’s duty had been triggered; and that section 117 should therefore be construed as imposing the duty to provide after-care services on Swindon alone from that point.”

But that wasn’t the end of it. This time the Secretary of State appealed against this decision to the Court of Appeal. They found that Worcestershire’s duty to provide aftercare was still continuing, despite the subsequent s.3 detention, since no decision had been taken that aftercare was no longer required.

So of course Worcestershire then appealed to the Supreme Court, who heard the appeal in April 2023 and published its decision on 10^th August 2023.

Worcestershire’s reasoning was that its duty to provide after-care services for JG under section 117 ended upon the second discharge, or alternatively that the duty ended at the start of the second detention.

The Secretary of State’s reasoning was that Worcestershire’s placement of JG in a care home in Swindon did not change where she was ordinarily resident, which as a matter of law continued to be in Worcestershire.

The Supreme Court concluded that:

"the duty under section 117(2) to provide after-care services automatically ceases if and when the person concerned is detained under section 3 … In this case, therefore, Worcestershire’s duty to provide after-care services for JG ended upon her second detention. Upon the second discharge a new duty to provide such services arose. Which local authority owed that duty is determined by section 117(3) and depends on where JG was ordinarily resident immediately before the second detention."

So in the end, it was concluded that Swindon was, after all, responsible for providing aftercare for JG.

Perhaps what this case highlights is the importance of legislators to ensure that the wording of legislation and statutory guidance should be as clear and as free of ambiguity as possible.

Will this decision finally put an end to such disputes, which in themselves can cost local authorities a lot in legal expenses and possibly places the subjects of the appeals in a limbo lasting several years?

I wouldn’t hold my breath.