Supreme Court allows appeal by Worcestershire in landmark case on ‘ordinary residence’ and s117 aftercare services

The Supreme Court has allowed an appeal brought by Worcestershire County Council over findings by the Court of Appeal that the local authority, rather than Swindon Borough Council, had a duty to provide after-care services to a service-user who had been detained under the Mental Health Act 1983.

The Supreme Court concluded that following the service user’s second discharge, Swindon, and not Worcestershire, had a duty to provide her after-care services.

The case of R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31 turned on the issue of where the service-user, ‘JG’, had been "ordinarily resident…immediately before being detained" for the purposes of s.117(3)(a) of the 1983 Act.

JG suffers from treatment-resistant schizoaffective disorder. In early 2014, she lived in Worcestershire.

In March 2014, JG was detained under section 3 of the Mental Health Act 1983 for treatment in hospital in Worcester (the first detention).

JG was 'ordinarily resident' in Worcester before her first detention and Worcestershire County Council was therefore obliged to provide her with after-care services on her discharge from hospital in July 2014 (the first discharge).

JG was assessed as lacking capacity to decide where to live on discharge. Following consultation with her daughter and others involved with her care, it was considered in JG's best interests for her to live near her daughter, said the Supreme Court.

In July 2014, JG was released to a care home in Swindon for after-care bringing her first detention to an end. This was funded by Worcestershire County Council.

In June 2015, as a result of deteriorating mental health, JG was detained again under section 3 for treatment in a hospital in Swindon (the second detention).

When JG left hospital in August 2017 (the second discharge), a dispute arose between Worcestershire and Swindon as to which of them was responsible for providing her with after-care services.

The dispute was referred to the Secretary of State for Health and Social Care.

The Secretary of State held that JG was ordinarily resident in Swindon because that was where she was living just before her Second Detention. This decision reflected guidance issued by the Secretary of State under section 78 of the 2014 Act.

Swindon sought a review of the 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.

At first instance, the High Court decided that Swindon was responsible. However, 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 that JG was ordinarily resident in Worcestershire before her second period of detention.

Worcestershire appealed to the Supreme Court.

Lord Hamblen and Lord Leggatt - with whom Lord Reed, Lord Burrows and Lord Richards agreed - said: “Worcestershire’s primary case is that its duty to provide after-care services for JG under section 117 ended upon the second discharge. Its alternative case is that the duty ended at the start of the second detention.

“If either argument is correct, it follows that Swindon, and not Worcestershire, had a duty to provide after-care services for JG after the second discharge on the premise that, as the courts below held, JG was ordinarily resident in the area of Swindon immediately before her second detention.”

The Secretary State disputed that premise. Counsel for the Secretary State submitted that, applying the reasoning of the Supreme Court’s decision in R (Cornwall County Council) v Secretary of State for Health [2015], Worcestershire’s placement of JG in a care home in Swindon “did not change where she was ordinarily resident”, which as a matter of law continued to be in Worcestershire.

Turning to the problem of interpretation raised by the appeal, Lord Hamblen and Lord Leggatt said: “It is agreed that, following the first discharge, the duty to provide after-care services for JG was owed by Worcestershire (alone). That is because, when she ceased to be detained and left hospital in July 2014, JG became a person to whom section 117 applies and for whom there was therefore a duty to provide after-care services under section 117(2).”

The judges added that under s. 117(2), the duty exists 'until such time as' the relevant authorities 'are satisfied that the person concerned is no longer in need of such services'.

The Supreme Court noted that “at no time” did Worcestershire make a decision that JG was no longer in need of after-care services.

On this basis, the Secretary of State argued, and the Court of Appeal accepted, that the duty of Worcestershire to provide after-care services for JG continued even after the second detention and second discharge and that this prevented such a duty from being imposed upon Swindon.

However, Worcestershire submitted as its primary case to the Supreme Court that, upon the second discharge, Swindon owed a duty to provide after-care services for JG because JG had been 'ordinarily resident' in Swindon immediately before the second detention, and it was agreed that, where there has been more than one period of detention, the words 'immediately before being detained' must refer to the most recent period of detention.

Worcestershire further submitted that, in these circumstances, its own duty must be taken to have ended when Swindon's duty arose upon the second discharge.

The court did not accept either conclusion, noting: “The approach put forward by Worcestershire as its primary case and the approach put forward by the Secretary of State and accepted by the Court of Appeal both suffer from the same flaw. Both approaches fail to explain why, assuming it is not possible to have two concurrent duties under section 117, one duty ousts or prevails over the other.

“Each approach rests on nothing more than assertion that its preferred duty trumps the other without identifying any basis in the language and purpose of the statute for reaching this conclusion.”

Turning to Worcestershire’s alternative case, the Supreme Court stated: “Worcestershire’s alternative case is that the duty under section 117(2) to provide after-care services for an individual ends if the individual is compulsorily detained in hospital for treatment. That individual is no longer a person who has ceased to be detained and has left hospital but rather a person who is detained and is in hospital.

“The criteria set out in section 117(1) are therefore not met. When that period of detention ends and the individual leaves hospital, a new duty under section 117(2) will arise.”

The Supreme Court noted that, unlike the other two suggested approaches, “this interpretation is grounded in the language and purpose of section 117”.

The judges added that “it is implicit in the wording of section 117(1), and in the very concept of “after-care”, that the section does not apply to persons who are (currently) detained under section 3 for the purpose of receiving medical treatment in hospital, but only to persons who have ceased to be and therefore are not now so detained (although they previously were).”

The court said: “As a matter of linguistic analysis, the answer to this argument, in our view, is that the duty under section 117(2) is to provide after-care services “for any person to whom this section applies”. The duty will therefore cease not only if and when a decision is taken that the person concerned is no longer in need of after-care services but, alternatively, if the person receiving the services ceases to be a person to whom section 117 applies.”

Counsel for the Secretary of State disputed the proposition that a person who is compulsorily detained in a hospital for treatment cannot be in need of after-care services.

He submitted that during a short period of such detention the need for after-care services would not necessarily cease, as steps might be required to plan ahead and prepare for care to be provided in the community for the person upon her anticipated discharge.

On this, Lord Hamblen and Lord Leggatt said: "It is wrong, however, to characterise such planning or preparation as the provision of after-care services. Planning or preparing to provide a service is not the same as providing the service."

Outlining its conclusions, the Supreme Court said that, on the best interpretation of section 117 of the 1983 Act, Worcestershire’s duty to provide after-care services for JG ended upon her second detention.

The judges continued: “Upon her second discharge a new duty to provide such services arose. Which local authority owed that duty depends on where JG was 'ordinarily resident' immediately before the second detention. Both courts below held that this was Swindon but the Secretary of State challenged that conclusion by his cross-appeal”.

The Secretary of State argued that Worcestershire's placement of JG in a care home in Swindon did not change, as a matter of law, where she was 'ordinarily resident' which at all times remained Worcestershire.

The court noted that the classic statement of what is meant by the term “ordinarily resident” is that of Lord Scarman in R v Barnet London Borough Council, Ex p Shah [1983], which states: “'Ordinary residence' must be (i) voluntarily adopted i.e. not enforced presence by reason of, for example, kidnapping or imprisonment; and (ii) for settled purposes”.

Lord Hamblen and Lord Leggatt found that although JG lacked mental capacity to decide where to live, the decision to live in Swindon was still made voluntarily “as it was the result of a choice made by those with the power to make decisions on her behalf”.

Further, her residence in Swindon was also adopted for settled purposes. Thus, on its plain meaning, JG was 'ordinarily resident' in Swindon before her second detention.

The Secretary of State then argued that the words 'ordinarily resident' in this context do not bear their usual meaning but are subject to a special rule of law that, if the accommodation in which a person is living is provided by a local authority for the purpose of performing its statutory duty under section 117 of the Act, then residence in that place should be disregarded in determining where he/she is 'ordinarily resident' for the purpose of section 117.

This rule was said to follow from the decision of the Supreme Court in R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137.

On the Cornwall decision, Lord Hamblen and Lord Leggatt said: “Cornwall concerned an individual referred to as “PH” who was born with multiple disabilities and who lacked mental capacity. As a child, PH was placed by Wiltshire Council with long term carers in South Gloucestershire. By reason of section 105(6) of the CA 1989, Wiltshire remained responsible for his accommodation. When PH reached the age of 18, a placement was found for him in a care home in Somerset.

“The issue which arose was, given “the parallel statutory context” of section 105(6) of the Care Act 1989 and section 24(5) of the National Assistance Act 1948 and the ordinary residence provisions of those Acts, in which authority’s area was PH to be regarded as ordinarily resident.”

Lord Carnwath had concluded in Cornwall: “… it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his eighteenth birthday.”

“The Secretary of State’s case is that Cornwall decides that “ordinary residence” for the purpose of care statutes such as the NAA 1948, the CA 1989, the 2014 Act and the 1983 Act depends on fiscal and administrative considerations and that under all of those statutes responsibility remains with the local authority which arranges accommodation for the person concerned for the purpose of fulfilling its statutory duties”, outlined the court.

The Court rejected this argument on grounds that: (i) the Cornwall decision should not be extended beyond the specific statutory context under review in that case; (ii) there is nothing in section 117 of the Act to suggest that the term 'ordinarily resident' should be given anything other than its usual meaning; and (iii) the argument is contrary to the decision of the Court of Appeal in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] EWCA Civ 77 and nothing in Cornwall or the amendment of section 117 by the Care Act 2014 cast doubt of the correctness of that decision; indeed they confirm it.

Concluding the case, the Supreme Court said: “"We conclude that the courts below were right to decide that, in circumstances where Parliament has deliberately chosen not to apply a deeming (or equivalent) provision to the determination of ordinary residence under section 117 of the 1983 Act, the words “is ordinarily resident” must be given their usual meaning, so that JG was ordinarily resident in Swindon immediately before the second detention."

Lord Hamblen and Lord Leggatt allowed Worcestershire’s appeal, rejecting the Secretary of State’s cross-appeal.

It was declared that following the second discharge, Swindon, and not Worcestershire, had a duty to provide after-care services for JG under section 117 of the 1983 Act.

Lottie Winson