R (Worcester County Council) v Essex County Council
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 29 October 2014 |
| Neutral Citation | [2014] EWHC 3557 (Admin) |
| Date | 29 October 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6061/2013 |
[2014] EWHC 3557 (Admin)
Administrative Court
Judge: HHJ David Cooke
CO/6061/2013
Appearances: V Butler-Cole (instructed by Head of Legal and Democratic Services) for Worcester; B Hewson (instructed by Essex Legal Services) for Essex
Issue: Which local authority was responsible for funding aftercare for a patient who had been placed in care in a hospital before being detained there under s2 and s3 Mental Health Act 1983.
Facts: VC, who was born in 1990 and whose family home was in Worcestershire, had significant behavioural difficulties arising from a childhood brain injury. She had been placed in various educational and residential facilities, all arranged by Worcester. In September 2009, she moved from a care home in Somerset to one in Northampton; but in October 2009, this arrangement broke down because of her behaviour, leading to an emergency placement in a hospital in Essex for patients with learning difficulties; initially, she was assessed as having capacity to consent to that placement and not being eligible for detention under the Mental Health Act 1983, but a few days later she was detained for assessment under s2 of the 1983 Act and then under s3 for treatment. She was discharged in October 2010, and subsequently lived in various locations. The question arose as to whether, under s117 of the 1983 Act, Essex County Council had responsibility for funding placements on the basis that they were aftercare following detention for treatment and VC had been resident in Essex in light of the short time spent at the hospital there before detention. For Essex, it was contended that VC had not in fact had capacity to consent to being placed in the hospital and so had always been detained there, which did not change residence.
1. The claimant (Worcester) seeks a decision that the defendant (Essex) is the local authority responsible for funding care for services for VC, a young woman with a troubled mental health history following a childhood brain injury, pursuant to s117 Mental Health Act 1983 (MHA or the Act) in the period following VC's discharge from detention under s3 of that Act.
2. The legal issues have been considered by courts at first instance and at Court of Appeal level on a number of occasions and are set out in the judgment of Lloyd LJ in R (Sunderland CC) v South Tyneside CouncilMHLR[2012] MHLR 404, to which both counsel referred me as the leading authority.
2. MHA provides in s3 for a patient to be admitted to a hospital and detained there for a period, upon conditions laid down in that and other provisions of the Act. This is what is sometimes referred to, in common parlance, as being sectioned. Section 2 provides for a patient to be admitted to a hospital and detained for a limited period for assessment. Both of these provisions allow the patient to be admitted to hospital against his or her will. They can be applied to a patient who is already in hospital as an in-patient. None of the provisions of the Act as regards compulsory admission or detention precludes the admission of a patient who requires treatment for mental disorder from being admitted to hospital on a voluntary basis; this is sometimes called informal admission: see s131.
3. The appeal is concerned with the situation that arises when a person who has been detained under s3 ceases to be so detained and (whether or not immediately) leaves hospital: see s117(1). When that happens, a local authority becomes responsible for the after-care of the person so discharged. Section 117(2) provides, so far as material, that it is the duty of the local social services authority, in cooperation with other agencies, to provide after-care services for such a person until they are satisfied that the person concerned is no longer in need of such services. So, one has to ask: which is the relevant local authority? As to that, s117(3) says that, in the 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
9. In R (Hertfordshire County Council) v Hammersmith and Fulham LBCMHLR[2011] MHLR 76, to which I will refer as the JM case, the Court of Appeal held that during a period of detention the person in question is not resident for the purposes of s117(3) in the hospital in which he or she is detained. Otherwise such a person would always, or almost always, be resident in the area of the relevant hospital. The decision in the JM case approved and explained an earlier decision at first instance, R (Hall) v Mental Health Review TribunalMHLR[1999] MHLR 49 (the Hall case), where Scott Baker J said that the relevant local social services authority was that for the area in which the patient was resident when he was detained
10. It follows that, in almost all cases of this kind, it will be necessary to look back at the position as it was some time ago in order to determine the place of residence for the purposes of the section, if for no other reason than that the issue arises on discharge from detention but that, in making that determination, the place of detention, that is to say the hospital, has to be ignored. Given the exclusion of the hospital, only rarely would there be any possible place of residence other than a place or places which had been relevant before the period of detention. The detention may last for some considerable number of years, so that it may be necessary to look back quite a long time.
3. The particular issue on the facts in the Sunderland case was that the patient, SF, was immediately before her detention under MHA already living at the hospital, having been admitted on a voluntary basis. The Court of Appeal upheld the decision that she had been resident at the hospital then; only the period of compulsory detention being left out of account. Although she had been living at student accommodation prior to her voluntary admission she could not be regarded as remaining resident in that accommodation since its availability was withdrawn after she was admitted to the hospital but before she was sectioned. I shall need to look more closely at the reasoning that led to this conclusion and apply it to the facts of this case.
4. It is common ground before me that although s117 apparently provides for 2 alternatives as to the area which identifies the responsible local authority the second (ie the area to which [the person concerned] is sent on discharge by the hospital) is a matter of last resort and only comes into play if no area can be identified in which the person is resident.
5. I can summarise the relevant factual background in this case as follows. VC was born in 1990 and is now 23. Her family's home has always been in Worcestershire. At the age of about 5 she sustained a serious brain injury in an accident. This had very marked effects on her behaviour (at least) and...
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