Supreme Court to hear next week dispute over ‘ordinary residence’ and s117 aftercare services

The Supreme Court will next week (27 April) hear a high-profile case over the responsibility of local authorities for the aftercare of a service-user who had been detained under the Mental Health Act 1983.

The case of R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care (Respondent) turns on the issue of where the service-user had been "ordinarily resident…immediately before being detained" for the purposes of s.117(3)(a) of the 1983 Act.

The background to the case is that JG suffers from treatment-resistant schizoaffective disorder. In early 2014, she lived in Worcestershire.

In March 2014, she was detained under section 3 of the 1983 Act for treatment in hospital (the "First Detention").

In April 2014, it was decided that it was in JG's best interests for her to move to a residential placement closer to her daughter in Swindon.

In July 2014, JG was discharged and was released to a care home in Swindon for after-care bringing her First Detention to an end. Her after-care services were funded by Worcestershire Council County/

In February 2015, Worcestershire moved JG to a second care home in Swindon because the first care home could no longer adequately meet her needs. The placement was also funded by Worcestershire.

In June 2015, JG was detained under section 3 of the 1983 Act for treatment in a hospital in Swindon (the "Second Detention").

In November 2015, JG was discharged, however, she remained an in-patient in the Swindon hospital, because she lacked decision-making capacity. In August 2017, JG was discharged to after-care.

A dispute arose as to where JG was "ordinarily resident" immediately before her Second Detention which would determine which local authority should pay for her after-care services.

The Secretary of State held that JG was ordinarily resident in Swindon because that was where she was living just before her Second Detention.

Swindon sought a review of that decision. The Secretary of State reversed his decision and decided that JG was ordinarily resident in Worcestershire for fiscal and administrative purposes. Worcestershire applied for judicial review of this decision.

The High Court held that JG was ordinarily resident in Swindon immediately before her second period of detention.

The Court of Appeal held in Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957 that JG was ordinarily resident in Worcestershire before her second period of detention.

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.”

Worcestershire appealed to the Supreme Court.

The case is due to be heard on 27 April 2023 by a Supreme Court panel comprising Lord Reed, Lord Hamblen, Lord Leggatt, Lord Burrows and Lord Richards.

In November 2022 the Department of Health and Social Care confirmed in an update to its statutory guidance that ordinary residence disputes between councils raising similar issues to those in the Worcestershire case would continue to be stayed until a final decision is made by the Supreme Court.