R Wiltshire Council v Hertfordshire County Council SQ (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean,Lord Justice Kitchin,Lord Justice Moses |
| Judgment Date | 22 May 2014 |
| Neutral Citation | [2014] EWCA Civ 712 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/2740,C1/2013/2740 |
| Date | 22 May 2014 |
[2014] EWCA Civ 712
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CO/6487/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lord Justice Kitchin
and
Mr Justice Bean
Case No: C1/2013/2740
and
Hilton Harrop-Griffiths (instructed by Solicitor, Wiltshire Council) for the Appellant
Rhodri Williams QC & Nazeer Chowdhury (instructed by Legal and Member Services, Hertfordshire County Council) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 19th May 2014
This case involves a dispute between two local authorities over who has responsibility under section 117 of the Mental Health Act 1983 ("the Act") for the aftercare of a person, originally made the subject of a hospital order with restrictions by an order of the Crown Court, who has been conditionally discharged for the second time from detention at a hospital.
SQ, who was born on 23 rd March 1971, lived in Wiltshire until 1995. He has been almost continuously in contact with local authority psychiatric services since he was 18 years old.
On 4 th December 1995 in the Crown Court at Swindon he was made subject to a hospital order under section 37 of the Act with restrictions under section 41. He was detained under that order for more than 13 years, until 2003 in Hampshire and thereafter in Cambridgeshire. On 20 th November 2006 a Mental Health Review Tribunal, Judge Reynolds presiding, ordered that he should be conditionally discharged subject to conditions which included residence in a 24 hour staffed hostel approved by the Responsible Medical Officer and the Social Supervisor, but further directed that his discharge was to be deferred until the Tribunal was satisfied that the necessary arrangements had been made to meet those conditions. By a further decision on 7 th July 2008 the same Tribunal reached the same decision, that is to say a deferred conditional discharge.
On 19 th January 2009 the First Tier Tribunal (as it had by then become) directed a conditional discharge and noted that they were now satisfied that appropriate accommodation had been secured and that a consultant psychiatrist in the community and a social supervisor had been appointed. One of the conditions of his discharge was that SQ was "to reside at Winnett Cottage, Stevenage, or such other 24 hour staffed hostel as [may be] approved by the RMO and Social Supervisor".
On 2nd March 2009 SQ was conditionally discharged from hospital to a placement at Winnett Cottage, Stevenage, Hertfordshire. He remained living there until 5 th September 2011, when he was recalled under section 42(3) of the Act by the Secretary of State and once again detained in a hospital, this time in Hertfordshire.
On 20 th February 2014 he was again conditionally discharged from hospital to Winnett Cottage. Before his discharge there had been correspondence between Wiltshire and Hertfordshire on the subject of which authority would owe him the duty to provide after-care services under section 117. By letter of 9 th January 2012 Hertfordshire rejected Wiltshire's contention that it (Hertfordshire) was the responsible authority.
Wiltshire issued a claim in the Administrative Court for judicial review of the decision contained in that letter. On 4 th July 2013, after consideration of the case on the papers, Judge Seys-Llewellyn refused permission. Wiltshire renewed the application at an oral hearing. This took place on 11 th September 2013 before Judge Denyer QC, who also refused permission. Wiltshire applied to this court for permission to appeal. On 21 st December 2013 Arden LJ granted permission and directed that, as the points of law involved were "reasonably urgent and important", the case should be retained in the Court of Appeal.
Section 117 of the Act provides, so far as material, as follows:-
(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, … 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 … and of the local social services authority to provide, 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 … 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 local social services authority" means the local social services authority 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.
The critical provision is section 117(3) and in particular the question of where, for the purposes of that subsection, SQ is now "resident". The final words of the subsection are in the nature of a fallback provision. As Scott Baker J observed in R v Mental Health Review Tribunalex parte Hall [1999] 3 All ER 132 at 143F,
"the words 'or to whom he is sent on discharge by the tribunal' are included simply to cater for the situation where a patient does not have a current place of residence. The subsection does not mean that a placing authority where the patient resides suddenly ceases to be 'the local social services authority' if on discharge the applicant is sent to a different authority."
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