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Which authority pays for aftercare

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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 [2012] EWCA Civ 1232M, [2012] 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 [2014] EWCA Civ 712M).
  • In R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin)M, [2014] 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.

Local authorities

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 [2015] UKSC 46M;
(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 SSHSC [2021] EWHC 682 (Admin)M. However, pending an 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.

See also:

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:

Dispute resolution

There is a statutory mechanism for resolving disputes between authorities, which is referred to in s117(4) and (5). See also:

INFORMATION


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