Rejection in triplicate: Section 117 responsible commissioner revisited (again...and again…and again…)

Although Ordinary Residence determinations aren’t generally the most headline-grabbing affairs, you might possibly recall our writing about this case around 12 months ago, not least because it saw the Secretary of State overturning his own decision, despite that putting him directly at odds with the Care and Support statutory guidance, as he acknowledged.  Or, if you prefer both names and pack drill, it saw Matt Hancock deciding that Jeremy Hunt had got it wrong (in reality of course, if lending itself somewhat less readily to the pen of a Matt or a Haig, more likely one discreetly anonymous civil servant having second thoughts or overturning the decision of another).  Any which way you look at it, however, it left a few people scratching their heads and wondering what on earth was going on and, put bluntly, whether the Secretary of State had ‘mislaid’ the proverbial marbles.

Background

By way of quick recap: P was living in Worcestershire when she was detained under section 3 Mental Health Act 1983 in the spring of 2014.  When she left hospital that summer, she received section 117 aftercare, which included the provision of accommodation in Swindon, funded by Worcestershire County Council.  In May of the following year, however, she was detained under section 3 once again.  The question that so vexed the Secretary of State was ‘Who would be responsible for funding her second period of aftercare, when she was discharged from hospital after this further period of detention?’  Round one (2017) saw Swindon in the frame (on the grounds that that was where she was living when she was detained on the second occasion – and this was consistent with both the legislation and the Care and Support statutory guidance); round two (2020) Worcestershire (when the SoS was asked by Swindon to reconsider his decision and he reversed his initial conclusions, surprisingly declaring the statutory guidance flawed).

Just before Christmas 2020 the case came before the High Court, when Worcestershire CC brought a challenge to the SoS’s 2020 decision on three grounds.  All parties agreed that, if the decision were to be quashed, it had to be indefensible on each of the three proposed bases.

Ordinary residence – the relevance of Cornwall

From 1 April 2015, the wording of section 117 had been amended so that the responsible commissioning bodies were identified by looking at where the individual was ordinarily resident immediately prior to detention.  The critical questions were, therefore, whether P was ordinarily resident (OR) in England at this critical time and, if she was, where she was OR.  This, in turn, raised the very interesting question of just how far the decision in R (Cornwall CC) v Secretary of State for Health [2016], taken under purely social care legislation, should be allowed to obtrude upon matters under the Mental Health Act 1983 (MHA).

The Cornwall case, you will recall, decided that where a child who is living in accommodation pursuant to the Children Act 1989 becomes an adult, with an entitlement to accommodation under the National Assistance Act 1948, their placement under the 1989 Act does not affect their place of ordinary residence.  If applied across the board, despite clear section 117 case law (eg: R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011]) stating that the statutory schemes under NAA 1948 and MHA 1983 are not congruent, this would mean that the Swindon accommodation, provided as part of P's aftercare services following her first period of detention, should be left out of account in deciding where she was OR immediately before her second period of detention, leaving her OR in Worcestershire throughout.

Linden J dismissed this idea, however: “Whatever may or may not have been the reasoning of the majority in the Cornwall case, that reasoning was in relation to the 1989 Act and the 1948 Act.  Whilst one can immediately see that it would apply to the [Care Act 2014] … the Supreme Court … did not consider the nature of ordinary residence under the Mental Health Act 1983 other than in its references to the Hertfordshire case.  As noted above, these references did not suggest that the Hertfordshire case was wrongly decided: on the contrary, they indicated that … the position under the 1948 Act and the 1989 Act should not necessarily be ‘read across’ to the 1983 Act, or vice versa.  This was not only because the relevant terms of the 1983 Act were different, including the lack of an equivalent disregard or deeming provision in respect of accommodation.  It was also because section 117 is free-standing and it serves a different category of person, with different needs, to those who are served by the care and support legislation.”

As to the subsequent ‘replacement’ of NAA 1948 by the Care Act 2014, the Court’s view was that“the difference in the approaches under the 2014 Act and the 1983 Act was both well understood and widely accepted before the Defendant's decision of 28 February 2020.” In other words, nothing of substance changed in this regard when the Care Act came into force.  On this principle, P was OR in Swindon at the time of the second section 3 detention.

Ordinary residence – sequential detentions and aftercare

The Defendant ran the alternative argument that, where there has been a period of detention, followed by a period of aftercare, immediately followed by a second period of detention, section 117 requires you to consider where the individual was OR immediately before they were first detained, rather than immediately before their most recent period of detention.

Linden J was having none of this, however, and dispatched the argument summarily:

“I reject Proposition 2.  It seems to me that section 117 contemplates that on each occasion that a person is to cease to be detained under section 3, or any of the orders or directions referred to in section 117(1) of the 1983 Act, and is to leave hospital, the question as to appropriate after-care services will arise and will be addressed by whichever bodies owe the section 117(2) duty at that time.  Consistently with this, the responsibility for the services to be provided after that period of detention will fall on the area in which they were ordinarily resident etc when the decision to detain them was made i.e. immediately before that period of detention.  I do not consider that the words of the provision are ambiguous or unclear.”

Termination of the duty arising out of the first detention

In a final bid to sustain the SoS’s 2020 decision, a third argument was put forward: that because no decision had ever been taken to discharge P from section 117, those initial aftercare duties sitting with Worcestershire remained extant, with the chain of responsibility unbroken by the second detention.  On this basis, Swindon never owed any duty under section 117, even if P was ordinarily resident there immediately before her second period of detention.

This argument, too, was rejected: Swindon became responsible for s117 aftercare in this case simply by operation of section 117(1) and section 117(3).  On this final point, however, the judgment seems sadly (and rather unsatisfactorily) to run out of steam.  Having said that it was simply untenable that a duty arising out of the first period of detention and imposed upon Worcestershire could somehow run in parallel with a duty subsequently arising and sitting with Swindon, Linden J said that the initial section 117 duty did need to be terminated by an actual decision (“a s117(2) compliant decision”) by Worcestershire; a further detention alone did not automatically have this effect.  Notwithstanding this, however, he concluded:

“Having said all of this, it appears that the reality is that Worcestershire ceased to fund the provision of accommodation to JG.  Whether it did so in breach of section 117(2) also appears to be academic….  The important point is that I disagree with the Defendant's view that because there was no section 117(2) compliant decision it follows that Worcestershire, and not Swindon, owed the duty to provide after-care services in respect of JG's release from her second period of detention.”

Decision

For all three reasons, the 2020 decision of the SoS was quashed.

Reflections

At the time of writing, it is not known whether the SoS will seek to appeal.  That might, however, provide a useful opportunity to clarify the third proposition above.

The decision on the second ground, in particular, may also sit a little awkwardly with the rules on payment set out in the latest edition of Who Pays? (September 2020) whereby the “originating CCG” (as determined by GP registration at the point of initial detention) remains responsible throughout the entire sequence of detention, aftercare, re-detention (or voluntary admission) and further aftercare, right up until the individual is finally discharged from section 117.  Payment rules, of course, do not interfere with commissioning obligations, which follow the legislation and the rules on OR.

As to the first proposition, as I write this, Cornwall has become synonymous with escape from lockdown; a Nirvana of which the cooped-up-at-home can only dream.  For healthcare lawyers, though, the merest murmur of the name is enough to send blood pressures rising.  Cornwall, with its subsequent indiscriminate application, is the Japanese knotweed of cases, incapable of knowing its place, determined to run amok and overwhelm every other concept in its path.  If this case has effected even some partial scything back of its untrammelled spread, that is much to be welcomed.

You can read the judgment here.