The government has been granted permission to appeal against a High Court decision overturning its approach to determining the ordinary residence of people receiving aftercare under the Mental Health Act 1983.
The Court of Appeal will consider whether the lower court was wrong to accept Worcestershire council’s challenge to a determination by the health and social care secretary 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. Worcestershire had placed the woman in the Swindon care home 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 has said pausing determinations of disputes in such cases would not be “prejudicial” to any council.
Legal dispute
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.
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Ordinary residence is very complicated but should be driven by where the person wants to live first. The shunting of complex needs cases will be the outcome of decisions to place people in other local authority areas if ordinary residence follows the person to wherever they land! London Authorities were past masters at such shunting under the old rules.
Where is your home, where is you family and where do you want to live should be the test.
If the test is where you want to live, social work is in a sorrier state than ever.
It is a mess, the current uncertainty is very unfortunate, and there is a great fear of shunting of costs from areas with low provision to areas with high provision (which just incidentally tends to be from urban areas to rural ones, areas which vote one way to areas which vote another). But from the first day I was employed as a social worker and found myself trogging off from London to Bognor Regis to make what I could of the s.117 placements of a handful of people who had been living there by then for many years and whom I knew nothing about, I’ve been bewildered by this tenacious Elizabethan idea that responsibility lies forever with the parish of origin and that it is “unfair” for it to change. In fact, what we need is a robust mechanism for moving the duty, for recognising what Nick is saying above about respecting the person and arranging care around them; and failing that, understood as the statutory guidance does, s.117 over time will have that effect, lodging the duty locally and especially for patients with high needs and frequent relapse-what’s not to like about that?
A better example of rich London LA’s offloading costs to lesser funded LA’s and justifying it on human rights grounds is going to be harder to find. How about just keeping people in areas they live and want to stay in? Then you wouldn’t have to wrestle with Elizabethean origin dillemas. That might mean rich Tory councils raising council tax to look after their own residents though. Much better get other councils to subsidise lower council tax. It’s disingenuous to reframe that as a human rights issue really isn’t it?
That’s like arguing local authorities should take over responsibility for the people placed in their area following the Grenfell Tower fire because nobody from Kensington council knows them that well anymore. And justifying placing people miles away from their families, work, schools and community ties as respecting their human rights. Social workers and commissioners shouldn’t just get out of London to go on holiday. Even those of us who live beyond West Sussex are able to understand double-think better than you assume.