Supreme Court clarifies who should pay for ‘after-care’ services

On 10 August 2023, the Supreme Court handed down its judgment in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care allowing Worcestershire County Council's appeal.

This case concerned the proper approach to the determination of ordinary residence and which local authority should pay for after-care services to someone detained under section 3 of the Mental Health Act 1983 (the Act) following their discharge from hospital.

Background

JG, initially lived in Worcestershire in a local authority property, was diagnosed with treatment resistant schizoaffective disorder.

In March 2014, she was detained in hospital under section 3 of the Act (the first detention). In April 2014, in JG's best interests she was moved to a residential placement closer to her daughter in Swindon. In July 2014, JG was discharged and released to a care home in Swindon for after-care services which were funded by Worcestershire County Council (Worcestershire). This was the end of her first detention.

Local authorities and the integrated care board (ICB) have a duty to provide 'after-care services' for people under section 117 of the Act, such as JG, who leave hospital after a period of compulsory detention. After-care services may include healthcare, social care and employment services and supported accommodation. The services should meet a need arising from a person’s mental disorder and the aim is to reduce the risk of being readmitted to hospital.

In February 2015, Worcestershire moved JG to a second care home in Swindon because the first care home could no longer adequately meet her needs. The placement in the second care home was also funded by Worcestershire.

In June 2015, JG was detained in hospital under section 3 of the Act (the second detention). In November 2015, JG was discharged but she remained an in-patient because she lacked decision-making capacity. In August 2017, JG was discharged and was in need of after-care services.

A dispute arose as to where JG was an "ordinarily resident" immediately before she was detained for the second time in June 2015, and which authority (Worcestershire or Swindon) should pay for JG's after-care services from 9 August 2017, when she left hospital.

The “ordinarily resident” test

The responsible local authority is the one where the person was ordinarily resident immediately before being detained. Where there is a dispute that decision falls to the Secretary of State.

The Secretary of State initially held that JG was ordinarily resident in Swindon because that was where she was living just before her second detention. Swindon sought a review of that decision. The Secretary of State then reversed his decision and decided that JG was ordinarily resident in Worcestershire for “fiscal and administrative purposes”.

Worcestershire judicially reviewed this decision and succeeded at first instance. The High Court held that JG was ordinarily resident in Swindon immediately before her second period of detention. On appeal, the Court of Appeal overturned this decision. Worcestershire appealed to the Supreme Court.

Supreme Court

The Supreme Court held that JG was an ordinarily resident in Swindon and the duty to provide after-care services fell to Swindon under section 117 of the Act. The key findings were:

• The duty under section 117(2) of the Act to provide after-care services automatically comes to an end if the person is again detained under section 3.
• This is because on the second detention the person is incapable of being provided with after-care services. It is implicit in the concept of 'after-care' that the duty does not apply to people who are currently detained receiving treatment in hospital but only to persons who have left hospital.
• After care services are to reduce the risk of readmission. It therefore makes no sense to speak of reducing the risk of the person requiring readmission to a hospital for treatment after the person has been readmitted.
• In JG’s case, Worcestershire’s duty to provide after care services ended on the second detention. On the second discharge, a new duty to provide such services arose.
• Ordinarily resident should be interpreted in its usual meaning and continues to be a concept concerned primarily with the facts of where a person lives. Ordinary residence must be voluntarily adopted and there must be a degree of settled purpose.

Comment

This is a helpful judgment which provides clarity as to how ordinary residence should be determined and that a section 117 duty ends automatically when a patient is detained again under section 3.

Disputes about the section 117 duty have arisen in recent years and this judgment should assist. We are now clear in how the operation of the section 117 duty is applied.

This judgment will likely result in reduced numbers of disputes between public bodies. It will also assist with clarifying the ‘Who Pays’ government guidance, which has been incredibly useful, but will now need updating.

A dispute can lead to delays in making after-care arrangements which means a patient could be detained in hospital longer than clinically necessary. Noting that Article 5 of the European Convention requires a patient to be detained only for so long as is necessary, the proper use of section 117 should reduce the time a patient spends in hospital. Any dispute, whilst this will be fact dependent, should now be resolved quickly. In turn, this will avoid the risk of infringing a patient’s Article 5 rights and any potential claim under the Human Rights Act 1998.