R (Worcestershire County Council) v SSHSC [2023] UKSC 31

Ordinary residence and s117 JG was detained under s3 in Worcestershire (Area 1), discharged to residential care in Swindon (Area 2), detained again under s3 in Swindon and discharged again. The Supreme Court held that: (1) a duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again under s3 (or another provision specified in section 117(1)), and upon the second discharge a new duty is placed on the local authority of the area in which the patient was ordinarily ordinarily resident immediately before the second detention; (2) there is no deeming or disregarding provision in the MHA (unlike the Care Act 2014 or Children Act 1989) so the words "is ordinarily resident" must be given their usual meaning, with the adaption where there is lack of capacity that the mental aspects of the Shah test (voluntary adoption and settled purpose) must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned; (3) on the facts, JG was ordinarily resident in Swindon immediately before the second detention, so Swindon was now responsible for after-care.

Essex

Essex newsletter 134.pdf

This case has been summarised on page 51 of 39 Essex Chambers, 'Mental Capacity Report' (issue 134, September 2023).

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

The WLR Daily case summaries

[2023] WLR(D) 354B

Supreme Court

Rex (Worcestershire County Council) v Secretary of State for Health and Social Care

[2023] UKSC 31B

2023 April 27; Aug 10

Lord Reed PSC, Lord Hamblen, Lord Leggatt, Lord Burrows, Lord Richards JJSC

Local government— Community care services— Discharge of patient with mental health condition— Patient detained in hospital over two separate periods in different local authority areas— Dispute as to which local authority responsible for cost of after-care services including accommodation— Whether original duty owed by local authority at time of first detention ceasing— Where patient “ordinarily resident” immediately before second detention— Mental Health Act 1983 , s 117

The patient, who had a diagnosis of treatment-resistant schizoaffective disorder, lived in local authority accommodation provided by the claimant, the local social services authority for Worcestershire. For several months in 2014 the patient was detained under section 3 of the Mental Health Act 1983 in a hospital in Worcestershire. On her discharge from hospital, the patient required after-care services pursuant to section 117(2) of the 1983 Act. Since it was decided that it would be in the patient’s best interests for her to move closer to her daughter in Swindon, she was released to a care home within the area of the local social services authority for Swindon, although the provision of this accommodation and care was arranged and funded by the claimant under section 117 as it constituted after-care services. In June 2015 the patient was again detained under section 3 of the 1983 Act, this time in a hospital in Swindon. She was discharged from section 3 detention in November 2015 but remained in the hospital as an in-patient until August 2017, after which she received after-care services. A dispute arose as to which local authority should pay for those after-care services, which depended on where the patient had been “ordinarily resident”, within the meaning of section 117(3) of the 1983 Act, immediately before being detained for the second time in June 2015. The Secretary of State initially determined that the patient had been ordinarily resident in Swindon because that was where she had been living immediately before her second period of detention, but reversed that decision on review, deciding that the patient had in fact been ordinarily resident in Worcestershire for fiscal and administrative purposes. The claimant sought judicial review of the Secretary of State’s review decision, contending that the local social services authority for Swindon should pay for the after-care services. The judge allowed the claim but, subsequently, the Court of Appeal allowed the Secretary of State’s appeal, deciding that although the patient had been ordinarily resident in Swindon immediately before her second detention, the duty owed by Worcestershire to provide after-care services following the first discharge was still continuing pursuant to section 117(2) of the 1983 Act.

On the claimant’s appeal and the Secretary of State’s cross-appeal—

Held, claimant’s appeal allowed; Secretary of State’s cross-appeal dismissed. The duty under section 117(2) of the Mental Health Act 1983 to provide after-care services automatically ceased if and when the patient concerned was detained under section 3 (or another provision specified in section 117(1)). In the present case, therefore, the claimant’s duty to provide after-care services for the patient had ended upon her second detention and, upon the second discharge, a new duty to provide such services arose. The local authority that owed that duty was determined by section 117(3) and depended on where the patient was “ordinarily resident” immediately before the second detention. The term “ordinarily resident” in that context should be given its usual meaning and Parliament did not intend to treat section 117(3) as equivalent to a deeming or disregarding provision, as found in other statutes. Therefore, section 117(3) did not state or imply that providing residential accommodation for an individual in another local authority’s area would not change the individual’s place of ordinary residence. Further, by enacting section 39(4) of the Care Act 2014 (which provided that an adult who was being provided with accommodation under section 117 of the 1983 Act (after-care) was to be treated as ordinarily resident in the area of the local authority on which the duty to provide services was imposed), Parliament had explicitly recognised that the area in which a person was ordinarily resident for the purposes of section 117 of the 1983 Act did not always coincide with the area in which he or she was treated as ordinarily resident for the purposes of the 2014 Act. Accordingly, the courts below were right to decide that, in circumstances where Parliament had deliberately chosen not to apply a deeming, or equivalent, provision to the determination of “ordinary residence” under section 117 of the 1983 Act, those words had to be given their usual meaning. Accordingly, in the present case, the patient had been ordinarily resident in Swindon immediately before the second detention and, following the second discharge, the local authority for Swindon, and not the claimant, had a duty to provide after-care services for her under section 117 of the 1983 Act (paras 54, 59, 70, 71, 79, 82–85, 87, 88).

R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] PTSR 1623, CA applied.

R (Cornwall Council) v Secretary of State for Health [2016] AC 137B, SC(E) distinguished.

Decision of the Court of Appeal [2021] EWCA Civ 1957M; [2022] PTSR 833 reversed in part.

Andrew Sharland KC, Lee Parkhill and Oliver Jackson (instructed by Head of Legal and Democratic Services, Worcestershire County Council, Worcester) for the claimant.

Tim Buley KC and Natasha Jackson (instructed by Treasury Solicitor) for the Secretary of State.

Alex Ruck Keene KC (Hon) and Nyasha Weinberg (instructed by Mind Legal Unit) for Mind, intervening by written submissions only.

Susanne Rook, Barrister

Referenced Legislation

Mental Health Act 1983, s 117