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.
In R (Worcestershire County Council) v SSHSC  UKSC 31 a patient was detained under s3 in Area 1, then became ordinarily resident in Area 2, then was detained again under s3 in Area 2. The Supreme Court decided that Area 1's duty ends when the second detention begins and a new duty is placed on Area 2 upon the second discharge.
Ordinary residence disputes which had been stayed pending the Supreme Court decision will now be progressed, with the DHSC working through previously stayed cases in the order in which they had been stayed (DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 5/10/23)).
Different provisions for ICBs
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. 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) NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 21/9/16) (full text of guidance amendments is in Annex A); (b) NHS England, '‘Who Pays’ amendment to the section on ‘persons detained under the Mental Health Act 1983’' (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.
The guidance above was superseded by NHS England, 'Who Pays? Determining which NHS commissioner is responsible for making payment to a provider' (25/8/20), which in turn was superseded by NHS England, 'Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers' (v2, 30/6/22) which should be read subject to National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022.
Note that CCGs were replaced by integrated care boards (ICBs) by the Health and Care Act 2022 on 1 July 2022. [Need to update the text above.]
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.