After care costs: which local authority pays?

Disputes about accommodation and after care costs for individuals discharged from hospitals may be increasing. A High Court decision resolves some of the problems, says Denis Edwards.

The costs of accommodating vulnerable adults and providing them with the full range of community care services can be significant. It is not surprising, therefore, that disputes sometimes arise between different local authorities about which of them is responsible for the future costs of a person’s accommodation and care after leaving hospital.

Clearly, the problem does not arise where a person has settled accommodation. In that case, the person remains resident there and the same local authority continues to be responsible for him or her even after a long hospital stay.

But in many cases vulnerable adults will not have settled accommodation. They may be transient or may have given up accommodation or may simply have been accommodated by a local authority on a temporary basis, for example, under s.21 of the National Assistance Act 1948 (“the NAA 1948”), before being admitted to a hospital for a long period. In some cases, they will have been detained under the Mental Health Act 1983 (“the MHA 1983”).

Often, the person will have entered a hospital or unit in another local authority’s area. Equally, before going into hospital or being detained under the MHA 1983, he may have had temporary accommodation in a local authority area, having been resident longer term elsewhere. When the person eventually leaves hospital, which local authority is responsible for the future costs of his accommodation and care?

This was the issue presented by the recent cases of R (M) v. (1) Hammersmith and Fulham LBC & (2) Sutton LBC and R (Hertfordshire CC) v. Hammersmith and Fulham LBC* (“the M case”) [2010] EWHC 562 (Admin).

The M Case

The M case was actually two cases. But they both involved the same type of dispute between different local authorities, so that for present purposes it is only necessary to focus on the M case itself.

The claimant, who was a vulnerable adult aged 61 years old, had been resident for more than 15 years in the London Borough of Hammersmith and Fulham (“HBC”). In 2006, he was involved in a serious road accident and spent three months in hospital. After being discharged, HBC accommodated him but after a while and various changes of accommodation, his placement failed.

At the end of July 2007, the claimant was transferred to a home in the London Borough of Sutton (“SBC”). He spent six months there, during which time, and with the consent of his family, he terminated a tenancy agreement with HBC. By April 2008, HBC’s social workers and the operators of the home in SBC decided that the home was not appropriate for him. In April 2008, however, he was detained under s.3 of the MHA 1983 and remained in a hospital in the area of SBC until October 2008.

On being released from detention under MHA 1983, he wanted to go back and live in HBC. A dispute then broke out between HBC and SBC about which authority was responsible for his accommodation and social care services.

The legal position

Section 24(1) of the NAA 1948 provides that the authority responsible for providing accommodation under the NAA 1948 is the one in whose area the person is “ordinarily resident”. Section 24(3) provides that where a person has no settled residence, the authority in which the person finds himself has a power to provide residential accommodation.

By virtue of directions issued by the Secretary of State in 1993, the powers conferred by s.21 of the NAA 1948 were converted to duties. At the same time, the Department of Health issued a circular – LAC(93) 7 – providing guidance on what “ordinary residence” means for the purposes of the NAA 1948.

The Secretary of State’s 1993 directions make clear that, in the case of persons suffering from mental disorder, the responsible local authority under the NAA 1948 is the one where the person is “ordinarily resident”. For those with no settled residence, the responsible local authority is the one in whose area the person is. In other words, the directions mirror the statutory provisions in s.24 of NAA 1948 as they apply to all persons.

Significantly, however, s.24(5) of NAA 1948 introduces a deeming provision for cases where one local authority provides accommodation for persons who are ordinarily resident in another authority’s area. The effect of s.24(5) is that a person is deemed to continue to be “ordinarily resident” in the area of the first authority.

On the other hand, s.117(3) of the MHA 1983 provides that where a person is discharged from a detention under the MHA 1983, the local social services authority which is responsible for him is the one for the area in which he is “resident” or to which he is sent on discharge.

The court’s decision

In the M case, HBC accepted that the effect of s.24(5) of NAA 1948 was it continued to be responsible for the claimant while he was accommodated at the home in SBC. However, HBC argued that the effect of s.117(3) of the MHA 1983 was that SBC was responsible for the claimant’s accommodation and after care costs following his discharge from the hospital where he had been detained. That was where he was “resident” at the time of his discharge. In contrast, SBC argued that HBC was responsible by virtue of the deeming provision in s.24(5) of NAA 1948.

The court concluded that HBC was correct. Section 24(5) of NAA 1948 was not relevant to the construction of s.117 of the MHA 1983. Accordingly, SBC was responsible for the accommodation and after care costs of the claimant following his discharge from the hospital in SBC’s area.

This result followed from the unavoidable fact that prior to his being admitted to hospital under the MHA 1983, the claimant had been “resident” in the area of SBC. And, of course, he also continued to be resident there while in hospital there. While he may have wished, on discharge, to be resident in HBC, the only possible conclusion was that he was resident in SBC.

Legitimate expectation?

SBC had sought to rely on a legitimate expectation it claimed it had under an agreement reached in 1988 by the Association of Metropolitan Authorities and the Association of County Councils, recorded in a document dated 4 October 1989. Its effect was that even in the cases of mentally ill persons, the deeming provision in s.24(5) of NAA 1948 applied. On this basis, SBC argued, HBC should be responsible for the costs of the claimant’s future accommodation and social care following his discharge from hospital.

However, the court concluded that it did not have any evidence of practice under this agreement to support SBC’s argument. There was therefore no legitimate expectation for SBC to rely on.

General practical points

1. Local authorities need to be aware of the different triggers for their duties under the various community care statutes. Under the NAA 1948, the main trigger is “ordinary residence”. The duties are owed to persons “ordinarily resident” in the authority’s area. There is no special meaning attached to the term “ordinary residence”. It is to all intents and purposes the same as “residence”.
2. The Chronically Sick and Disabled Persons Act 1970 adopts the same considerations of “ordinary residence” as those in the NAA 1948. Accordingly, “ordinary residence” is the threshold for the duties under that Act too.
3. In contrast, the Children Act 1989 adopts a different approach for determining the authority which owes duties to children under s.17 and s.20 of that Act. The law here is that an authority owes the accommodation and welfare duties to children “within their area”.
4. Similarly, the assessment duty under s.47 of the National Health Service and Community Care Act 1990 is owed to those who “may” be provided with community care services. The s.47 duty therefore has no residence threshold – see R v Berkshire CC ex parte P (1998) 1 CCLR 141. It is owed to all persons who are in the authority’s area, irrespective of where they are resident or ordinarily resident.
5. Finally, the M case may not be the last word on the question of which local authority is responsible for the accommodation and after care costs of a person released from a detention under the MHA 1983. The legitimate expectation argument arising from the 1988 agreement was not determined. The lesson for a future case is to identify any evidence of practice which supports an expectation that the authority which is responsible for after care costs is not the one where the person happened to reside prior to admission.

Denis Edwards is a barrister at Francis Taylor Building. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.. This article was first published in the FTB Local Government Newsletter, which is available here.  The newsletter contains short and practically focussed items sent quarterly by e-mail to busy local authority practitioners and is written by FTB’s specialist local government team. To subscribe to the FTB Newsletter, please e-mail This email address is being protected from spambots. You need JavaScript enabled to view it..