Worcestershire arranged and paid for JG’s mental-health after-care in Swindon. She later needed hospital treatment again. When she left hospital for the second time, which council had to provide her after-care? The answer turned on when the first statutory duty ended and where JG had been ordinarily resident before her second detention.
Section 117 of the Mental Health Act 1983 requires a health body and a local social services authority to provide after-care, free of charge, for people who leave hospital after compulsory detention for treatment for mental disorder. The responsible local authority is the one for the area where the person was ordinarily resident immediately before the detention.
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JG’s two detentions
JG lived in Worcestershire before her first detention under section 3 of the Mental Health Act 1983 in March 2014. She lacked capacity to choose where to live. A decision was taken in her best interests that she should live near her daughter in Swindon. Worcestershire arranged and paid for her care-home accommodation there after she left hospital.
In May 2015 she was admitted to hospital in Swindon, initially under section 2. From 23 June 2015 she was detained under section 3. She ceased to be detained under section 3 in November 2015 but remained in hospital, lacking decision-making capacity, until she left on 9 August 2017.
The dispute below
The Secretary of State determines a dispute between English local authorities about ordinary residence for this purpose. He first decided that JG had been ordinarily resident in Swindon immediately before the second detention and that Swindon was responsible. That reflected his guidance. After Swindon requested a review, he decided that Worcestershire remained responsible, while accepting that this conflicted with the guidance.
Linden J held that Swindon alone was responsible. The Court of Appeal held that Worcestershire was. Coulson LJ, with whom Carr and William Davis LJJ agreed, accepted that JG had been ordinarily resident in Swindon, but held that Worcestershire’s duty continued because no decision had been taken that she no longer needed after-care. There could be only one duty at a time, so none arose for Swindon. Swindon took no part in the appeals.
The risk of two overlapping duties
No one had formally decided that JG no longer needed after-care. The Secretary of State therefore argued that the first duty continued. Yet if section 117 were applied afresh after the second detention, the council for JG’s new area of ordinary residence would also owe her after-care. All parties agreed Parliament could not have intended two authorities to be responsible for the same services at the same time.
Worcestershire’s main argument, accepted by Linden J, was that its duty ended on the second discharge because another authority’s duty had arisen. That required words to be read into section 117(2). The Secretary of State argued the reverse: the first duty continued, so a second could not arise. The Supreme Court rejected both. Neither could explain, from the language or purpose of the Act, why one duty should prevail rather than the other. Arguments about efficiency and continuity of care were unsupported by evidence. The Court regarded the dispute as really one about which authority had to pay.
The duty ends on detention for treatment
The Court accepted Worcestershire’s alternative argument. Section 117 applies to people who have ceased to be detained and have left hospital, not to someone currently detained for treatment. Its purpose is to arrange services for a person who has been, but is not currently being, provided with treatment and care as a hospital patient. After-care must meet a need arising from or related to the mental disorder and reduce the risk of deterioration and of admission to hospital again for treatment. That purpose cannot be pursued once the person has already been readmitted for such treatment.
The duty is owed to any person to whom the section applies. It therefore ends not only when the authorities decide that after-care is no longer needed, but also if the person ceases to fall within the section, as on death, deportation or imprisonment. Detention under section 3, or another provision specified in section 117(1), for treatment has that effect. After-care cannot then be provided, so no decision that it is unnecessary is required. Preparing for discharge is not itself after-care: before discharge there is a power to plan, not a duty to provide the services. A voluntary admission, or detention under section 2 for assessment, does not end an existing duty.
Worcestershire’s duty therefore ended on 23 June 2015. A new duty arose when JG left hospital on 9 August 2017. Section 117(3) placed that duty on the authority for the area where she was ordinarily resident immediately before the second detention.
Ordinary residence remained a question of fact
By a cross-appeal, the Secretary of State argued that this area was still Worcestershire because it had placed JG in Swindon under section 117. The Court applied the ordinary meaning: a place adopted voluntarily and for settled purposes as part of the regular order of life for the time being. Presence is involuntary only in narrow cases of forcible detention, including compulsory detention under the 1983 Act. Having no other suitable home does not make residence involuntary. Because JG lacked capacity, the relevant choice was the decision made for her. Her move to Swindon was chosen on her behalf and was settled. On that test she was ordinarily resident in Swindon, and the Secretary of State did not argue otherwise.
The Court refused to extend R (Cornwall County Council) v Secretary of State for Health to section 117. Cornwall concerned the National Assistance Act 1948 and the Children Act 1989. Each contained a deeming or disregarding provision so that an authority could not export its responsibility by placing someone elsewhere, and the issue was the transition between those regimes at 18. Section 117 has no deeming provision. It imposes a free-standing duty on a limited and exceptionally vulnerable class, and section 117(3) only fixes the time at which ordinary residence is judged.
Verdict: The Supreme Court allowed Worcestershire’s appeal, rejected the Secretary of State’s cross-appeal, and declared that, following JG’s second discharge, Swindon and not Worcestershire had the duty to provide after-care services for her under section 117 of the Mental Health Act 1983.
