The government has appealed against a High Court ruling overturning a new approach it has taken to determining ordinary residence in relation to aftercare under the Mental Health Act 1983.
In a statement issued this week, the Department of Health and Social Care (DHSC) said it was awaiting confirmation from the Court of Appeal as to whether its challenge to the ruling in R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council would be granted.
In that case, the High Court accepted Worcestershire council’s challenge to a determination by health and social care secretary Matt Hancock that it was responsible for the aftercare of a woman after she was detained for treatment under the MHA while resident in a care home in Swindon, where she had been placed by Worcestershire for aftercare.
Pending the outcome of the appeal, the DHSC has said that it will continue to refrain from determining disputes between local authorities that are similar to the Worcestershire case, other than in exceptional circumstances.
As section 41 of the Care Act 2014 allows for an authority to recover money it has expended on the care of someone later deemed not to be ordinary resident in another area, the DHSC said pausing determinations of disputes in such cases would not be “prejudicial” to any council.
The nub of the dispute is what should happen when a person is discharged for aftercare to a different area (area B) to the one in which they were ordinarily resident before detention (area A), then detained again and discharged for further aftercare.
Prior to the secretary of state’s determination in the Worcestershire case, the law was that the local authority for area B, along with the relevant clinical commissioning group, would be responsible for the person’s aftercare following the second detention. This position is what is set out in the Care Act statutory guidance.
In his determination, the secretary of state said this was no longer the government’s view, for three reasons. However, the High Court, in the Worcestershire case, rejected his reasoning on all three grounds.
- The secretary of state said the Supreme Court’s 2015 judgment in R (on the application of Cornwall Council) v Secretary of State for Health was applicable to ordinary residence in section 117 cases. This meant that a council would retain ordinary residence for a person discharged for aftercare to another area up to the point of any subsequent detention, so would be responsible for their aftercare thereafter. However, the High Court pointed out that the Cornwall case referred to ordinary residence under the Children Act 1989 and the National Assistance Act 1948. While it was applicable to determining ordinary residence under the Care Act 2014, the Supreme Court did not consider cases under section 117 of the MHA, so its reasoning could not be read across to such cases.
- The secretary of state also claimed that the reference to aftercare responsibility being determined by where the person was ordinarily resident “immediately before being detained” in section 117(3) should mean where they were ordinarily resident before their first detention where the person has been detained multiple times, so long as they were continuously provided with aftercare in the meantime. However, the High Court rejected this, saying that on each occasion a person was detained, their need for aftercare would need to be considered, and that would fall on the authority in which they were ordinarily resident immediately before that particular detention.
- The secretary of state also argued that an authority’s responsibility for aftercare did not end necessarily on the person being detained a subsequent time. Under section 117(2) of the MHA, entitlement for aftercare ends when the relevant council and NHS commissioning body decides that the person no longer needs it – not on their subsequent detention. So, given that, Worcestershire did not take the decision that the woman did not need aftercare, it retained responsibility. However, the High Court rejected the approach for similar reasons to point two – that responsibility for aftercare would always rest with the authority for the area where the person was ordinarily resident before that particular detention.