Which authority pays for aftercare
[This page needs to be updated.]
General position under s117
The responsible authorities are those for the area in England or Wales in which the patient was ordinarily resident immediately before being detained – alternatively, if the patient was not ordinarily resident in England or Wales, the authorities for ‘the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained’.
What is important here is where the patient was ordinarily resident before being detained under the MHA. The patient does not become ‘ordinarily resident’ for s117 purposes at the place of detention during detention there (but may be ordinarily resident there owing to an informal admission).
Older case law
Most of the s117 case law dealt with ‘residence’ (prior to the Care Act 2014 amendments) rather than ‘ordinary residence’ but the principles should still be useful:
- A patient who had lived at halls of residence in Sunderland, and was admitted first as an informal then a detained patient in South Tyneside, ceased to be resident in Sunderland when the halls of residence terminated her placement (R (Sunderland City Council) v South Tyneside Council M,  MHLO 117).
- A patient placed under a hospital order when resident in Wiltshire but discharged with a condition to reside in Hertfordshire remained ‘resident’ in Wiltshire because the residence condition meant his residence in Hertfordshire was not voluntary (R (Wiltshire Council) v Hertfordshire County Council M).
- In R (Worcestershire CC) v Essex CC M,  MHLO 104, Essex argued that VC lacked capacity to have consented to her place of residence, and therefore had not been resident in Essex for the purposes of s117 (the result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself). They were unsuccessful, and the judge stated that lack of capacity was not relevant.
The Department of Health and Social Care’s position (set out in DHSC, ‘Statutory guidance: DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case’ (24/6/20)) is that if a patient is detained in Area 1, then provided with accommodation under s117 in Area 2, then detained in Area 2:
- (a) the patient remains ordinarily resident in Area 1, applying R (Cornwall Council v SSH M;
- (b) in the alternative, "immediately before being detained" in s117 means "immediately before being first detained";
- (c) in the further alternative, Area 1's duties may continue throughout the second detention.
The High Court rejected all three of the propositions above in R (Worcestershire County Council v SSHSCM. The Court of Appeal has given permission to appeal and, pending that appeal, the policy remains that ordinary residence disputes must still be referred in the usual timeframe but, absent exceptional circumstances, cases which raise similar issues as the Worcestershire case will be stayed.
- Ordinary residence and s117. DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20) — (1) The DHSC position, which is subject to ongoing proceedings in R (Worcestershire CC) v SSHSC, is that if a patient is detained in Area 1, then provided with accommodation under s117 in Area 2, then detained in Area 2: (a) the patient remains ordinarily resident in Area 1, applying R (Cornwall Council v SSH  UKSC 46; (b) in the alternative, "immediately before being detained" in s117 means "immediately before being first detained"; (c) in the further alternative, Area 1's duties may continue throughout the second detention. (2) Ordinary residence disputes must still be referred in the usual timeframe but, absent exceptional circumstances, cases which raise similar issues as the Worcestershire case will be stayed. (3) The current position contradicts the Care and Support statutory guidance, which will be updated when the court case has been decided. Superseded by: DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 21/4/21).
- Ordinary residence and s117. Luke Clements, 'Ordinary Residence s117 - all change in England (and Wales?)' (June 2020) — This article discusses the potential implications of DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20).
Different provisions for CCGs
For patients discharged between 1 April 2013 and 31 March 2016, the duty on a CCG imposed by s117 can be imposed on a different CCG in the situations set out in the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. CCG B is responsible instead of CCG A in certain circumstances which are set out in Regulation 14. The rough gist is that if the patient is registered with a GP in area B then it is the CCG in area B which is responsible.
For patients discharged from 1 April 2016, the situation changed again, under the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2016. The detail can be found in the regulations.
In relation to the 'Why Pays?' guidance:
- The current guidance is NHS England, 'Who Pays? Determining which NHS commissioner is responsible for making payment to a provider' (25/8/20).
- The following documents relate to amendments to the original 'Who Pays?' document, effective from 1/4/16 (I was never able to locate the the amended 'Who Pays?' document): (a) LGA, ADASS and NHS England, 'Building the right support - Frequently Asked Questions (finance)' (gateway reference 04659, updated 9/4/16)† (full text is in Annex A); (b) ADASS, 'Updated NHS "Who Pays" S117 Guidance' (19/4/16)†; (c) Emmett Maginn, 'Who pays? Significant changes to determining which CCG is responsible for funding s117 MHA 1983 aftercare after 1 April 2016' (Browne Jacobson, 11/5/16)†. Amendments made in April 2016 to paragraphs 33 and 34 of the August 2013 ‘Who Pays?’ document (which should be read subject to the Regulations themselves) state that: if a patient who is resident in the area of CCG A is discharged to the area of CCG B, the responsibility to pay for s117 aftercare remains with CCG A; if the patient is subsequently readmitted or recalled to hospital for assessment or treatment of his mental disorder (except where the admission is into ‘specialised commissioned services’), or changes his GP practice (and associated CCG), CCG A still retains responsibility.
There is a statutory mechanism for resolving disputes between authorities, which is referred to in s117(4) and (5). See also:
- Department of Health and Welsh Government, 'Mental health aftercare in England and Wales: Arrangements for resolving disputes over ordinary residence involving local authorities in England and Wales' (March 2015)‡. These arrangements, made under s117(5), set out the process by which the Secretary of State for Heath and the Welsh Ministers will decide which of them will determine a dispute about where a person was ordinarily resident for the purposes of s117(3) if the dispute is between an LSSA in England and an LSSA in Wales.