Court of Appeal confirms principle on responsibility for s. 117 after-care funding

The Court of Appeal has confirmed the principle that the placing authority remains liable for funding s. 117 Mental Health Act 1983 after-care.

In Wiltshire Council v Hertfordshire County Council and SQ [2014] EWCA Civ 712 a dispute arose between the two local authorities over who had responsibility under s. 117 for the after-care of SQ.

SQ, who was born on 23 March 1971, lived in Wiltshire until 1995. He had been almost continuously in contact with local authority psychiatric services since he was 18 years old.

On 4 December 1995 in the Crown Court at Swindon he was made subject to a hospital order under section 37 of the 1983 Act with restrictions under section 41. He was detained under that order for more than 13 years, until 2003 in Hampshire and thereafter in Cambridgeshire.

In January 2009 the First Tier Tribunal directed a conditional discharge and noted that they were now satisfied that appropriate accommodation had been secured and that a consultant psychiatrist in the community and a social supervisor had been appointed.

One of the conditions of SQ’s discharge was that he was “to reside at Winnett Cottage, Stevenage, or such other 24 hour staffed hostel as [may be] approved by the RMO [Responsible Medical Officer] and Social Supervisor”.

On 2 March 2009 SQ was conditionally discharged from hospital to a placement at Winnett Cottage. He lived there until September 2011, when he was recalled under s. 42(3) of the Act. SQ was this time detained in a hospital in Hertfordshire.

On 20 February this year he was again conditionally discharged from hospital to Winnett Cottage.

Before his discharge there had been correspondence between the two councils on the subject of which authority would owe him the duty to provide after-care services under section 117.

In a letter sent on 9 January 2012 Hertfordshire rejected Wiltshire’s contention that it (Hertfordshire) was the responsible authority.

Wiltshire launched judicial review proceedings. It sought permission to appeal from the Court of Appeal after the High Court declined to grant permission both on the papers and at a subsequent oral hearing.

Giving the judgment of the court, Mr Justice Bean said he considered it “clear that where a person has been made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of s. 117(3) of the Act he is still to be treated as ‘resident in the area’ of the same local authority as that in which he lived before the original hospital order was made.

“This makes it unnecessary to consider whether or not a fresh duty to provide after-care services arose on SQ’s second discharge earlier this year. Whether the duty is a fresh one or a continuing one, on the facts of this case it is Wiltshire’s duty.”

Rhodri Williams QC and Nazeer Chowdhury appeared for Hertfordshire County Council.