R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lord Hamblen,Lord Leggatt,Lord Reed,Lord Burrows,Lord Richards |
| Judgment Date | 10 August 2023 |
| Neutral Citation | [2023] UKSC 31 |
| Court | Supreme Court |
[2023] UKSC 31
Lord Reed, President
Lord Hamblen
Lord Leggatt
Lord Burrows
Lord Richards
Supreme Court
On appeal from: [2021] EWCA Civ 1957
Appellant
Andrew Sharland KC
Lee Parkhill
Oliver Jackson
(Instructed by Head of Legal and Democratic Services, Worcestershire County Council)
Respondent
Tim Buley KC
Natasha Jackson
(Instructed by the Government Legal Department)
Intervener — Mind (written submissions only)
Alex Ruck Keene KC (Hon)
Nyasha Weinberg
(Instructed by Mind Legal Unit)
Heard on 27 April 2023
Lord Hamblen AND Lord Leggatt ( with whom Lord Reed, Lord Burrows and Lord Richards agree):
The issue in this appeal is which of two local authorities is responsible for providing and paying for “after-care services” under section 117 of the Mental Health Act 1983 (the “1983 Act”) for a particular individual.
Section 117 places a duty on health authorities and local social services authorities to provide after-care services for persons who have left hospital following compulsory detention for treatment for mental disorder under the 1983 Act. The duty is placed on the authorities in whose area the person concerned was “ordinarily resident” immediately before being detained (see section 117(3)(a)). The complication in this case is that, after being discharged from hospital, the person concerned moved from the area of one local authority where she was ordinarily resident to the area of a second local authority, where (in accordance with section 117) she was provided with after-care services by the first local authority. She was then compulsorily detained in hospital for a second time. The question is which of the two local authorities is responsible for providing after-care services for her when she left hospital after this second period of detention. Is it the first authority – the appellant, Worcestershire County Council (“Worcestershire”), which was responsible for providing such services immediately before the second detention? Or is it the second authority – the interested party, Swindon Borough Council (“Swindon”), in whose area she was living at that time?
At first instance the judge, Linden J, decided that the second authority, Swindon, is responsible: [2021] EWHC 682 (Admin). The Court of Appeal reached the opposite conclusion and held that it is the first authority, Worcestershire: [2021] EWCA Civ 1957, [2022] PTSR 833. Worcestershire appeals against that decision. Swindon has not taken part in the appeal, but the appeal is opposed by the Secretary of State for Health and Social Care. The Secretary of State has also cross-appealed seeking to uphold the decision of the Court of Appeal that Worcestershire is responsible for providing after-care services under section 117 on a ground rejected by both courts below.
The key statutory provisions which are in issue in this case are subsections (1), (2), (3) and (6) of section 117 of the 1983 Act. These provide:
“ 117 After Care
(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.
(2) It shall be the duty of the clinical commissioning group or Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the clinical commissioning group or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services; …
…
(3) In this section ‘the clinical commissioning group or Local Health Board’ means the clinical commissioning group or Local Health Board, and ‘the local social services authority’ means the local social services authority —
(a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;
(b) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or
(c) in any other case 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.
…
(6) In this section, ‘after-care services’, in relation to a person, means services which have both of the following purposes —
(a) meeting a need arising from or related to the person's mental disorder; and
(b) 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).”
Section 117(3)(a) and (b) were added by section 75(3) of the Care Act 2014 (“the 2014 Act”). Before that amendment the relevant authorities were defined in every case as those for the area specified in what is now section 117(3)(c): that is, 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”.
The definition of “after-care services” in subsection (6) was also added by section 75 of the 2014 Act. Previously there was no statutory definition of the term. In R (Mwanza) v Greenwich London Borough Council [2010] EWHC 1462 (Admin), [2011] PTSR 965, paras 63–67, Hickinbottom J approved the interpretation suggested in a respected commentary on the 1983 Act by Richard Jones ( Mental Health Act Manual, 12 th ed (2009), para 1–1053) that an after-care service is “a service which is (1) provided in order to meet an assessed need that arises from a person's mental disorder; and (2) aimed at reducing that person's chance of being re-admitted to hospital for treatment for that disorder”. It can be seen that section 117(6) broadly adopts this test.
As reflected in the statutory definition, the provision of after-care services under section 117 is intrinsically linked to the medical treatment which a person compulsorily detained for treatment for mental disorder under the 1983 Act has been receiving in hospital: see DM v Doncaster Metropolitan Borough Council [2011] EWHC 3652 (Admin), para 64. As explained by Lord Steyn in R v Manchester City Council, Ex p Stennett [2002] UKHL 34, [2002] AC 1127, para 5, it is part of a regime introduced to further a policy of shifting people with mental health conditions from institutional care to care in the community and which “bridged the gap between the institution and unsupported return to the community” ( DM para 64). It is important to note that section 117 applies only to an “exceptionally vulnerable” class of persons (see Stennett at paras 8 and 15) who have been compulsorily detained for treatment under section 3 (or certain other specified provisions) of the 1983 Act. It does not extend to persons who have been informally or voluntarily admitted to hospital under section 131 of the 1983 Act or who have been admitted for assessment under section 2 (which allows for detention for a maximum of 28 days).
In practice, the services provided as “after-care” largely comprise healthcare and social care, including the provision of specialised accommodation. Although these services could be provided under other statutory regimes, section 117 is not a “gateway” to other regimes but imposes a free-standing duty which has the important feature that the services must be provided free of charge: see Stennett, paras 7, 10.
The House of Lords held in Stennett that the duty imposed by section 117 necessarily imports a concomitant power to carry out the duty: see para 11. It also gives rise to an implied power to make plans and take preparatory steps before the duty to provide after-care arises on release from hospital: see W v Doncaster Metropolitan Borough Council [2004] EWCA Civ 378, [2004] LGR 743, paras 49–51. That power is discretionary, but failure to use reasonable endeavours without strong reasons may amount to an unlawful exercise of the discretion: see R (B) v Camden London Borough Council [2005] EWHC 1366 (Admin), [2006] LGR 19, paras 58–61.
This case concerns a particular individual who, to preserve her anonymity, has been referred to as “JG”. However, the court has been told that the circumstances giving rise to this appeal are common and can be expected to arise many times every year.
JG lives with a schizoaffective disorder that is resistant to treatment. It is common ground that before the relevant events she was ordinarily resident in Worcestershire. In March 2014 she was detained under section 3 of the 1983 Act for treatment in hospital in Worcester (“the first detention”).
While she was in hospital, JG was assessed as lacking capacity to decide where to live when discharged. Following consultation with her daughter and others involved in JG's case, a decision was made that it would be in JG's best interests for her to reside in a care home close to where her daughter lives, in Swindon.
Accordingly, when JG ceased to be detained under section 3 of the 1983 Act and left hospital in July 2014 (“the first discharge”), she was placed by Worcestershire in a residential care home in Swindon. (Worcestershire subsequently moved JG to a second care home in Swindon because the first care home could no longer adequately meet her needs.) The provision of this accommodation and care constituted the provision of after-care...
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