Worcestershire County Council, R (on the application of) v Secretary of State for Health and Social Care [2023] UKSC 31

Worcestershire County Council disputed responsibility for after-care services under section 117 of the Mental Health Act 1983 for an individual detained twice. The Supreme Court held that the duty to provide after-care services ends upon subsequent detention, with responsibility transferring to the local authority where the person was ordinarily resident before the latest detention.

Facts

JG, an individual with a schizoaffective disorder, was originally ordinarily resident in Worcestershire. In March 2014, she was detained under section 3 of the Mental Health Act 1983 (the first detention). Upon discharge in July 2014, Worcestershire placed her in a care home in Swindon as part of after-care services under section 117. In May 2015, JG’s mental health deteriorated and she was detained again under section 3 (the second detention). Following her second discharge in August 2017, a dispute arose between Worcestershire and Swindon as to which authority was responsible for providing after-care services.

Issues

Primary Issue

Which local authority is responsible for providing after-care services under section 117 of the Mental Health Act 1983 following a second period of detention: the authority originally responsible after the first discharge (Worcestershire), or the authority in whose area the individual was ordinarily resident immediately before the second detention (Swindon)?

Secondary Issue

Whether ordinary residence for section 117 purposes should be determined applying a deeming provision analogous to other care legislation, such that JG remained ordinarily resident in Worcestershire despite living in Swindon.

Judgment

The Supreme Court allowed Worcestershire’s appeal and rejected the Secretary of State’s cross-appeal. The Court held that the duty to provide after-care services under section 117(2) automatically ceases when the person is detained again under section 3 of the 1983 Act. Upon the second discharge, a new duty arises, owed by the local authority for the area where the person was ordinarily resident immediately before that detention.

“We conclude that, on the best interpretation of section 117 of the 1983 Act, the duty under section 117(2) to provide after-care services automatically ceases if and when the person concerned is detained under section 3 (or another provision specified in section 117(1)).”

Regarding ordinary residence, the Court held that section 117 does not contain a deeming provision equivalent to other care legislation. Therefore, ordinary residence must be given its usual meaning:

“We conclude that the courts below were right to decide that, in circumstances where Parliament has deliberately chosen not to apply a deeming (or equivalent) provision to the determination of ordinary residence under section 117 of the 1983 Act, the words ‘is ordinarily resident’ must be given their usual meaning, so that JG was ordinarily resident in Swindon immediately before the second detention.”

Key Legal Principles

• Section 117 imposes a free-standing duty to provide after-care services, distinct from other care legislation.
• The duty under section 117(2) ends automatically upon subsequent detention under section 3 of the Mental Health Act 1983.
• After-care services are intrinsically linked to reducing the risk of readmission to hospital for treatment; once readmitted, there is no room for such services.
• Ordinary residence for section 117 purposes bears its usual meaning, following the test in R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309.
• Section 117 does not incorporate the deeming provisions found in other care legislation such as the National Assistance Act 1948 or the Care Act 2014.

Implications

This judgment provides clarity on the allocation of responsibility for after-care services where individuals are subject to multiple periods of detention. It confirms that responsibility transfers to the local authority where the person was ordinarily resident immediately before the most recent detention. This may have significant financial implications for local authorities in areas where care homes and supported accommodation are located. The decision emphasises the independence of the section 117 regime from other care legislation and rejects attempts to import deeming provisions by analogy.

Verdict: Appeal allowed; cross-appeal dismissed. Swindon Borough Council, not Worcestershire County Council, has the duty to provide after-care services for JG under section 117 of the Mental Health Act 1983 following the second discharge.

Source: Worcestershire County Council, R (on the application of) v Secretary of State for Health and Social Care [2023] UKSC 31