Supreme Court agrees to hear dispute between councils over responsibility for s.117 aftercare services

The Supreme Court has granted Worcestershire County Council’s application for leave to appeal in a high-profile case concerning the proper approach to the determination of ordinary residence for the purposes of section 117(3) of the Mental Health Act 1983, where a person has been detained in hospital for treatment on more than one occasion.

In an update to its statutory guidance, the Department of Health and Social Care (DSHC) has confirmed that ordinary residence disputes raising similar issues to those in the Worcestershire case would continue to be stayed until a final decision is made by the Supreme Court.

On 22 December 2021, the Court of Appeal ruled in favour of the Secretary of State in Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957.

At issue was which of two local authorities should pay for after-care services pursuant to s.117(3) of the Mental Health Act 1983. The user in question has been detained, released and then, sometime later, detained again under the Act.

In the High Court Mr Justice Linden had concluded that the answer in the particular case was Swindon Borough Council because that was where the user (JG) was living at the time of her second detention.

Swindon sought a review of that decision. On 28 February 2020, the Secretary of State for Health and Social Care reversed his decision and decided that JG was in fact ordinarily resident in Worcestershire for "fiscal and administrative purposes", and because Worcestershire had originally placed JG in a care home in Swindon.

The Secretary of State for Health and Social Care acknowledged that this conclusion was at odds with his own guidance, but said that his change of mind was based on both the “legislation and the case law.”

Allowing the appeal, Lord Justice Coulson said: “S.117 is clear. The duty subsists until it comes to an end by the communication of a decision by Worcestershire pursuant to s.117(2). There has been no such decision. The duty therefore continued throughout both the second period of detention and beyond.”

No date has yet been given for the Supreme Court hearing.

Lottie Winson