Government wins appeal over which council was responsible for s.117 after-care services

The Department for Health and Social Care (DHSC) has won its appeal in a much-anticipated Court of Appeal ruling on which of two local authorities should pay for after-care services pursuant to s.117(3) of the Mental Health Act 1983 where the user has been detained, released and then, sometime later, detained again under the Act.

In the High Court Mr Justice Linden had concluded that the answer in the particular case was Swindon Borough Council because that was where the user (JG) was living at the time of her second detention.

The DHSC maintained that it should have been Worcestershire County Council to pay, because it had originally placed JG in a care home in Swindon.

It was accepted that JG was ordinarily resident in Worcestershire prior to her first detention.

In Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957 the Court of Appeal allowed the Department’s appeal.

Lord Justice Coulson said: “The starting point is that the words of s.117(2) could not be clearer. It provides that the duty continues ‘until such time as’ a decision is taken by the relevant medical/social care staff at the authority that they are satisfied that the person concerned is no longer in need of after-care services.

“As the judge found, there was no such decision here. So this whole debate really boils down to trying to find a way round the express provisions of s.117(2), and to alight upon some other way in which it might be said that the duty came to an end. No matter how ingenious such an answer might be, it will always be met with the response: that is not what the Act says.”

Lord Justice Coulson said there had been much debate about whether the original duty owed by Worcestershire at the start of the first period of detention could be trumped by a new duty owed by Swindon, based on the fact that JG was ‘ordinarily resident’ in Swindon at the start of the second period of detention.

The Court of Appeal judge said: “Assuming for the purpose of this argument that JG was ordinarily resident in Swindon at that point, I do not consider that there was any competition between rival duties. As the judge said, there could only be one duty at any one time. That duty rested with Worcestershire until it came to an end either on the facts or as a matter of law.

“There is nothing in s.117 that could permit this court to conclude that, absent any decision by Worcestershire under s.117(2), the fact that JG had become ordinarily resident in Swindon immediately prior to the second period of detention somehow gave rise to a competition, and switched the relevant duty from Worcestershire to Swindon. [Counsel for Worcestershire’s] submission – that this was the neatest and least artificial solution to the problem of competing duties – was based on a false premise. There was only ever one duty and, as long as the original duty subsisted, the question of competing duties did not arise.”

Lord Justice Coulson suggested that there were other practical difficulties with Mr Justice Linden’s solution. “Indeed, the whole notion of an automatic change in the identity of the authority with the duty to provide after-care services, triggered by law rather than by a decision made by those actually involved in the care of the service user, seems to me to be unrealistic. It would be woefully uncertain. How would that change come about? How would it be effected? How would it be communicated? Who is responsible for identifying that it had happened? There were no answers to these questions.”

He added that the judge's conclusion seemed to him to be a most unsatisfactory outcome. “Someone like JG is particularly vulnerable. When/if she is detained, everyone must be trying to work to a plan which sees her release from detention as soon as possible. All through the period of her detention, there would be extensive planning by the responsible authority which, on the judge's findings in this case, was Worcestershire. It would be curious to find that, at the very moment those plans come to fruition, and JG is released, Worcestershire suddenly became irrelevant, and a new duty was owed by a new local authority.”

That would not make for continuity of care, and would be very unsatisfactory for the service user, Lord Justice Coulson said. “Unless I was compelled to conclude that was the effect of s.117, I would be very reluctant to reach a decision on that basis.”

The Court of Appeal judge said that for the reasons he had given, he did not need to reach such a decision.

He added: “S.117 is clear. The duty subsists until it comes to an end by the communication of a decision by Worcestershire pursuant to s.117(2). There has been no such decision. The duty therefore continued throughout both the second period of detention and beyond.”

Coulson LJ said that was, on its own, sufficient to overturn the judge's conclusions and to find that Worcestershire was the relevant local authority with the duty to provide after-care services to JG.

He said that made it strictly unnecessary to go on and deal with the arguments about where JG was ordinarily resident at the time of her second detention. However, the Court of Appeal judge said that it would be inappropriate for the Court of Appeal “to duck that much more difficult question”.

Lord Justice Coulson decided that, on balance, Mr Justice Linden had been right to conclude that the answer to the question was Swindon. “I have not found the decision easy and I can see the force of the competing arguments.”

Lady Justice Carr and Lord Justice William Davis agreed.

The DHSC is now expected to publish revised guidance following the Court of Appeal's decision.