Section 117 MHA, after-care, and ordinary residence: the Supreme Court gives clarity

The Supreme Court has clarified one aspect of the perennially thorny question of responsibility for funding after-care under s.117 MHA 1983.  In R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care) [2023] UKSC 31, the court was concerned with the situation where, after being discharged from hospital the person in question, JG, moved from the area of one local authority (Worcestershire) where she was ordinarily resident to the area of a second local authority (Swindon), where (in accordance with s.117) she was provided with after-care services by Worcestershire. She was then compulsorily detained in hospital for a second time.  At that point, the question became which local authority was responsible after she was discharged from hospital: Worcestershire or Swindon?

At first instance, Linden J held that Swindon was responsible; the Court of Appeal reached the opposite conclusion.  Swindon appealed; the Secretary of State cross-appealed seeking to uphold the decision on a ground rejected by both courts below.

Worcestershire’s primary case was that its duty to provide after-care services for JG under s.117 ended upon the second discharge. Its alternative case was that the duty ended at the start of the second detention. If either argument is correct, it followed 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 of State disputed that premise. He submitted that applying the reasoning of the Supreme Court’s decision in R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46, 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. In applying s.117(3), the Secretary of State argued, the area in England in which JG was ordinarily resident immediately before the second detention was therefore Worcestershire.

Lords Hamblen and Leggatt (with whom Lords Reed, Burrows and Richards agreed) first analysed Worcestershire’s arguments on the premise that JG was ordinarily resident in Swindon immediately prior to the second detention.  As they identified, the conundrum was that, prima facie, both local authorities owed her obligations upon the second discharge, but that:

30. It has, however, been common ground throughout these proceedings that Parliament cannot have contemplated that two parallel duties, owed by two different local authorities, to provide after-care services for the same individual should exist at the same time. This would be a recipe for disputes between local authorities and risk logistical chaos. No party to this litigation, and no judge, has suggested that section 117 should be interpreted as having this result. The question that arises, therefore, is how (if at all) section 117 can properly be interpreted in a way that avoids such an unacceptable outcome and identifies only one of the two local authorities which are prima facie responsible as having a duty to provide after-care services for JG under section 117(2) following the second discharge.

Three potential ways through the conundrum were put forward.  The Supreme Court were not attracted by Worcestershire’s first suggestion (which had been the view taken by Linden J), namely that its duty to provide after-care services ended on the second discharge.  This would mean reading into the statute that the duty terminated where a duty was owed by another authority. The problem was that this required wording to be read into s.117(2) in circumstances where Worcestershire was unable “to provide any justification in terms of the statutory language and purpose for reading section 117(2) as if it included these additional words” (paragraph 33).

Lords Hamblen and Leggatt were equally underwhelmed by the Secretary of State’s argument: as it was the converse of Worcestershire’s case, it was open to exactly the same objection in reverse.  The Secretary of State’s argument (accepted by the Court of Appeal) was that the duty imposed by s.117(2) continued until an express decision was taken that the person was no longer in need of after-care services; as only one duty could exist at any one time, that meant no new duty owed by another local authority could arise.  However, Lords Hamblen and Leggatt identified, the Secretary of State and the Court of Appeal failed to explain why, on the second discharge, Swindon did not owe a duty under s.117(2): “[a]pplying section 117(2) and (3)(a) in accordance with their terms, upon an individual leaving hospital after ceasing to be detained a duty is imposed on the local authority for the area in which the individual was ordinarily resident immediately before that period of detention. There is nothing in section 117 which says that such a duty will not arise if there is a pre-existing duty resting on another local authority” (paragraph 36).

The problem, therefore, was that each approach advanced: “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” (paragraph 40).

Nor were the practical considerations prayed in aid by both parties of much assistance, especially in circumstances where there was no evidence to allow them to be tested.

The answer, Lords Hamblen and Leggatt found, lay in Worcestershire’s alternative case, namely that the duty to provide after-care services ended if the individual is compulsorily detained in hospital for treatment.

44. […] 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. On this interpretation, therefore, there is never any possibility of concurrent or competing duties. So there is no need to try to explain why one duty should oust or prevail over another.

Lords Hamblen and Leggatt noted that this approach was grounded in the language and purpose of s.117:

45. […] 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)…

46. Furthermore, as specified in section 117(6)(b), to constitute “after-care services”, the services must have the purpose of “reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder)”. That purpose is only capable of being fulfilled if the person concerned is not currently detained in a hospital for treatment for mental disorder. It makes no sense to speak of reducing the risk of the person requiring readmission to a hospital for treatment after the person has been readmitted.

The Secretary of State argued that it was inconsistent with the language of section 117(2) to assert that the duty to provide after-care services will cease at a time when no decision has been taken by the relevant bodies that the services are no longer needed.  However:

49. 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. As Mr Sharland KC pointed out, that would be the case if, for example, the person concerned were to die or was deported or imprisoned. Although there is nothing in section 117(2) which says that the duty will cease in that event, there would then be no person to whom section 117 could apply. That is also true if the person concerned ceases to fall within the class of persons specified in section 117(1). For the reasons given, interpreted in the context of section 117 as a whole and its purpose, the class of persons specified in section 117(1) does not include persons who are currently detained in a hospital under section 3 for treatment. Upon such detention an individual therefore ceases to be a “person to whom this section applies”.

50. Looking at the matter more broadly, where a person who has been receiving after-care services is admitted to a hospital for treatment under section 3 (or one of the other provisions mentioned in section 117(1)), it is inherent in the person’s situation and the nature and purpose of after-care services that she has no need for, and is incapable of being provided with, after-care services. It is therefore unnecessary for the relevant authorities to take any decision that they are satisfied that the person concerned is no longer in need of such services. Such a decision is only necessary, and it is only necessary for section 117(2) to require such a decision, if the situation of the person concerned is one in which a present need for such services could possibly exist.

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.  The Secretary of State’s Counsel 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. However, Lords Hamblen and Leggatt considered it was wrong “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. The fact that the local authority has a power, but not a duty, to engage in such planning and preparation before a person is discharged […] does not show that a duty to provide after-care services does or may exist before the person’s discharge. On the contrary, it is inconsistent with that suggestion” (paragraph 51).

Importantly, Lords Hamblen and Leggatt were at pains to make clear that their analysis applied only to those detained under s.3 (or one of the other provisions mentioned in s.117(1) for treatment for mental disorder, rather admission to hospital or detention alone.  As they identified:

53. […] under section 117(6) after-care services are directed at reducing the risk of admission to hospital for “treatment” and to admission to hospital “again” for such treatment. This is clearly referring to further treatment under section 3 of the 1983 Act (or the other provisions referred to in section 117(1)). Where after-care services have not avoided that risk eventuating and there has been readmission for such treatment, there is no room for the continued provision of services which are aimed at reducing that specific risk. The same does not apply in relation to other admissions to hospital. It is wrong to suppose, therefore, that a voluntary admission to hospital or admission for assessment could lead to permanent loss of the right to receive after-care services.

On the facts of the case, therefore, duty to provide after-care services for JG ended upon her second detention. Upon the second discharge a new duty to provide such services arose. Which local authority owed that duty was determined by s.117(3) and depended on where JG was ordinarily resident immediately before the second detention – i.e. Swindon.

Lords Hamblen and Leggatt then turned to the Secretary of State’s cross-appeal, challenging the premise that JG had been ordinarily resident in Swindon immediately prior to her second detention.  The Secretary of State’s position was that:

in determining where a person is ordinarily resident for the purposes of section 117(3), a person remains ordinarily resident in the area of a local authority which is providing her with accommodation in performing its statutory duty under section 117 even if the accommodation is situated, and the individual is therefore living, in the area of another local authority. So, as immediately before the second detention JG was living in accommodation provided by Worcestershire, she remained ordinarily resident in Worcestershire for the purposes of section 117(3).

Lords Hamblen and Leggatt started with broad observations, drawing on the ‘classic’ statement of what is meant by the term “ordinarily resident” made by Lord Scarman in R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309, and noting that:

57. We think it clear in principle and from the examples given by Lord Scarman that the circumstances in which a person will not be regarded as ordinarily resident in a place because the person’s presence there is involuntary are narrow and are limited to situations where the person is forcibly detained. Along with kidnapping and imprisonment, compulsory detention under the 1983 Act would fall into this category. On the other hand, the fact that someone has no other accommodation (or suitable accommodation) available to her in which to live does not prevent it from being said that she is ordinarily resident where she is living. The occupation of that accommodation is still adopted voluntarily in the requisite sense and the absence of any practical alternative only tends to confirm that her situation has the necessary degree of settled purpose to amount to ordinary residence. This situation may arise where, for example, a person dependent on a local authority for accommodation is only offered accommodation by the local authority in one particular place, as happened here on the first discharge.

58. The test articulated in Shah requires adaptation where the person concerned is someone such as JG who lacks the mental capacity to decide where to live for herself. It seems to us that in principle in such a case the mental aspects of the test must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned. Under the Mental Capacity Act 2005 that power will lie with any person who has a lasting power of attorney or with a deputy appointed by the Court of Protection or with the court itself.

Applying this approach:

58. […] JG’s residence in the area of Swindon was adopted voluntarily in the relevant sense, as it was the result of a choice made on her behalf to live in the accommodation that Worcestershire provided for her following the first discharge. Manifestly, her residence in that place was also adopted for settled purposes as part of the regular order of her life for the time being. Thus, if the term “ordinarily resident” is given its usual meaning, it is clear that immediately before the second detention JG was ordinarily resident in the area of Swindon. Indeed in these proceedings the Secretary of State has not sought to argue otherwise.

However, the Secretary of State argued that the words ‘ordinary resident’ had a special meaning for purposes of s.117 MHA 1983, being subject to the ‘rule’ that if the accommodation in which the person concerned is living is provided by a local authority for the purpose of performing its statutory duty under section 117, then residence in that place should be disregarded in determining where the person is “ordinarily resident” for the purpose of section 117(3).

As Lords Hamblen and Leggatt identified at paragraph 59: “[t]here is no such rule to be found in the language of the 1983 Act (or any other legislative provision). But the Secretary of State submits that it follows from what the Supreme Court decided in Cornwall.”  As they identified at paragraph 68: “[t]he precise legal basis of the majority decision in Cornwall is a matter of some controversy.”

They rejected, however, the Secretary of State’s case that Cornwall decided 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. Although the 1983 Act contains no deeming provision, section 117 achieves substantially the same result as, once a local authority is fixed with responsibility for providing care, a move out of that local authority’s area will not generally affect that responsibility (as when JG moved to Swindon).

Rather:

70. In agreement with the courts below, we would reject this attempt to extend the Cornwall decision beyond the specific context of the statutes under consideration in that case and their “parallel statutory context” (per Lord Carnwath at para 58). Both those statutes contained provisions which shared the same “underlying purpose” (para 54) and the particular problem which arose was what was to happen on the transition of care responsibility from one statutory regime to the other when PH turned 18. The 1983 Act does not contain a deeming provision or other similar provision; nor does it sit in a “parallel statutory context” to those statutes. As the judge observed [2021] EWHC 682 (Admin), at para 87, “it serves a different category of person, with different needs, to those who are served by the care and support legislation.”

71. We do not accept that section 117(3) of the 1983 Act is functionally equivalent to the deeming or disregarding provisions in the other statutes. Unlike those provisions, section 117(3) does not manifest any intention that the term “ordinarily resident” should be given anything other than its usual meaning. Section 117(3) does not state or imply that providing residential accommodation for an individual in the area of another local authority will not, or is not to be taken to, change the individual’s place of ordinary residence. All it does is to specify the time at which the person’s ordinary residence is to be determined for the purpose of allocating responsibility to provide and pay for their care. This carries no implication that, at the point in time at which the person’s ordinary residence is required to be determined for the purpose of section 117, any special rule or test of ordinary residence different from the normal test should be applied.

As Lords Hamblen and Leggatt noted, the independence of s.117 from other care legislation was borne out by the decision of the Court of Appeal in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] EWCA Civ 77, which served as “clear Court of Appeal authority that section 117(3), before it was amended by the 2014 Act, fixed responsibility for after-care services on the local authority where the person concerned was resident immediately prior to detention, even if his residence came about because he was living in accommodation provided or paid for by another local authority. Section 117(3) did not contain a deeming provision equivalent to section 24(5) of the NAA 1948, nor did that provision apply to the free-standing regime under section 117.”  Nor did anything said in Cornwall cast doubt on the correctness of the decision.

The Secretary of State was therefore driven to argue that everything changed when in 2014 Parliament amended the wording of section 117(3). However, as Lords Hamblen and Leggatt made clear at paragraph 79 “[l]ike the courts below, we would unhesitatingly reject that argument,” and identified that:

We think it clear that the amendments subsequently made to section 117(3) did no more than (i) replace the concept of residence with that of ordinary residence and (ii) make clear on the face of the legislation that the time at which ordinary residence is to be determined for the purpose of section 117(3) is the point immediately before the person is detained (reflecting how the original wording had anyway been interpreted: see para 76 above). The amended wording cannot properly be interpreted as going further and as applying the same rules which govern where a person is ordinarily resident for the purpose of the 2014 Act to the determination of ordinary residence under section 117(3).

Their Lordships also found unconvincing the Secretary of State’s attempt to explain away s.39(4) Care Act 2014, which provides that an adult being provided with accommodation under s.117 MHA 1983 is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed. The Secretary of State argued that s.39(4) was, in fact, otiose (i.e. unnecessary) because the effect of Cornwall was already to have implemented a deeming regime.  However, Lords Hamblen and Leggatt were not persuaded:

86. […] It was clearly essential to the conclusion reached in Cornwall that the two relevant statutory regimes each contained a deeming (or disregarding) provision intended to achieve exactly the same effect. Far from being otiose, their existence was therefore critical. The significance of section 39(4) is in confirming that, unlike the rules in the adult social care legislation and the CA 1989, the ordinary residence rules in the 2014 Act and section 117 of the 1983 Act are not congruent with each other, so that a specific provision is needed to align them where they interact.

Comment

Perhaps heeding the plea for the need for clarity by Mind in its written intervention, Lords Hamblen and Leggatt were at pains both to set out a very clear answer to the conundrum before them, and to explain precisely how they reached that answer.

Whilst clear, the decision will no doubt require a considerable number of situations to be revisited where local authorities in the position of Worcestershire become aware that people they are providing s.117 aftercare to have been re-detained whilst ordinarily resident in the area of another local authority.

It is also important to note that, whilst detention under s.3 (or another of the provisions identified within s.117(1)) extinguishes a pre-existing s.117 duty, and Lords Leggatt and Hamblen were clear s.117 and s.3 cannot co-exist whilst a patient is in hospital, it is possible for s.3 and s.117 to exist whilst a patient is liable to be detained under s.3 but not in hospital.  Lord Leggatt, whilst in the Court of Appeal, had “readily accept[ed]” in R(CXF) v Central Bedfordshire Council NHS North Norfolk Clinical Commissioning Group [2018] EWCA Civ 2852, that there will be cases in which a patient granted leave of absence from hospital under s.17 MHA 1983 does ‘cease to be detained’ and ‘leave hospital’ within the meaning of s.117(1), so as to be eligible for s.117 aftercare.  CXF was (unsurprisingly) referred to in approving terms by Lords Leggatt and Hamblen in their judgment in the current case, so clearly remains good law.

As regards the Supreme Court’s very clear conclusions about the non-applicability of the deeming provisions in other social care legislation to the s.117 zone, it is important to note that the Secretary of State will get his way if and when the draft Mental Health Bill is taken forward because clause 39(3) of the Bill expressly applies the deeming rules under social care legislation to the determination of ordinary residence.  In the meantime, the DHSC’s guidance of 27 January 2022 will no doubt be rapidly updated.  Likewise, the NHS ‘Who Pays’ Guidance will need to be updated, given that it asserts in the re=detention scenario at paragraph 18.11 a position which can no longer be correct.  There will, though, be no need for a change to paragraph 19.64 of the statutory Care and Support Guidance – as readers with longer memories will remember, it was the DSHC’s decision in 2020 that they no longer agreed with their own guidance in paragraph 19.64 which gave rise to this case.