Supreme Court rules in landmark case on ‘ordinary residence’ and ‘after-care services’

The Supreme Court appeal has provided the much-needed clarification on who funds ‘after-care services’ under section 117 of the Mental Health Act 1983. The issue of who is responsible for funding these (often-expensive care packages) is a very real issue for local authorities and NHS Integrated Care Boards.

In this blog, we consider the Supreme Court’s decision in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31 and its implications. You can read our earlier article on the Court of Appeal’s decision here.

Background

The case concerned a dispute about which local authority, Swindon or Worcestershire, was under a duty to arrange section 117 after-care for service user JG, who was detained under the MHA 1983 on two separate occasions.

JG was first detained under section 3 MHA when she lived in Worcestershire. When she was discharged, she was placed out-of-area in a care home in Swindon to be closer to her family. The placement continued to be funded by Worcestershire. Soon after, JG was detained again under section 3 MHA. Following her discharge from section 3 MHA, a dispute arose between the local authorities as to who was responsible for JG’s after-care.

The dispute was referred to the Secretary of State (SoS). The SoS had to determine:

• where JG was ordinarily resident before being detained on the second occasion; and
• when did Worcestershire’s section 117 duty end

Historical decisions

This has been a case with many twists and turns but, in summary:

• The SoS initially decided that Swindon was responsible under section 117.
• Swindon appealed and the SoS reversed his earlier decision.
• Worcestershire therefore judicially reviewed the substituted decision and were successful at first instance.
• Then the SoS appealed and the appeal was allowed in the Court of Appeal.

Issue one: ordinary residence

The Supreme Court ruled against the SoS’s arguments that “ordinary residence” has a special meaning when a person is placed out of area by a public body and that JG would have remained ordinarily resident in Worcestershire for "fiscal and administrative purposes”. This was an argument derived from the earlier Supreme Court case of R (Cornwall CC) v Secretary of State for Health [2016].

The Supreme Court made clear that "ordinarily resident" should be given its ordinary meaning (determined by the facts of where a person lives).  Residence must be voluntarily adopted and there must be a degree of settled purpose. The Supreme Court concluded that JG’s residence in Swindon was adopted voluntarily as it was the result of a choice made on her behalf (as she lacked capacity).

This was the general understanding before the Cornwall judgment and before the Court of Appeal’s judgment in this case.

Therefore, the Supreme Court ruled that JG, prior to her second detention, was ordinarily resident in Swindon and that they had a duty to provide after-care services under section 117.

Issue two: ending of section 117

The Supreme Court clarified that the duty under section 117 ends automatically when a patient is detained again under section 3.

This is because they have no need for and are incapable of being provided with after-care services.

Therefore, upon a second discharge, a new duty to provide after-care services arises.

The SoS had argued (successfully in the Court of Appeal) that a subsequent detention did not automatically end any pre-existing section 117 duty. The Court of Appeal had concluded that the section 117 duty could only ever end if the relevant public bodies made a joint decision to discharge their duty, pursuant to section 117(2). However, because the person is no longer in need of services the Supreme Court overturned this.

Comment

The Supreme Court’s decision provides welcome clarity when determining an ICB’s or a local authority’s commissioning responsibilities for after-care under section 117.

The Department of Health and Social Care’s statutory guidance on the determination of ordinary residence disputes dated 1 June 2023 will need updating as will NHS England’s Who Pays? guidance where it covers the commissioning responsibility for re-detention. It is worth remembering that there are proposed changes to section 117 in the draft Mental Health Bill as and when it progresses too.