R Worcestershire County Council v Secretary of State for Health and Social Care

JurisdictionEngland & Wales
JudgeLord Justice Coulson,Lady Justice Carr,Lord Justice William Davis
Judgment Date22 December 2021
Neutral Citation[2021] EWCA Civ 1957
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2021/0681,C1/2021/06810
Between:
The Queen on the application of Worcestershire County Council
Respondent
and
Secretary of State for Health and Social Care
Appellant

and

Swindon Borough Council
Interested Party

[2021] EWCA Civ 1957

Before:

Lord Justice Coulson

Lady Justice Carr

and

Lord Justice William Davis

Case No: C1/2021/0681

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

Mr Justice Linden

[2021] EWHC 682 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Tim Buley QC (instructed by Government Legal Department) for the Appellant

Lee Parkhill (instructed by Worcestershire County Council) for the Respondent

Hearing Date: 2 December 2021

Approved Judgment

Lord Justice Coulson
1

INTRODUCTION

1

This is another dispute about which of two local authorities should pay for care services, in this case after-care services pursuant to s.117(3) of the Mental Health Act 1983 (“the 1983 Act”). The service user, JG, was detained, released and then, sometime later, detained again under the 1983 Act. The primary issue, as presented both below and on appeal, was where she was “ordinarily resident…immediately before being detained” for the second time, for the purposes of s.117(3)(a) of the 1983 Act. Linden J (“the judge”) concluded, in a painstaking judgment, that the answer was Swindon Borough Council (“Swindon”) because that is where she was living at the time of her second detention. The appellant maintains on appeal that the answer was Worcestershire County Council (“Worcestershire”), the respondent to the appeal, because they had originally placed her in a care home in Swindon. It was accepted that she was ordinarily resident in Worcestershire prior to her first detention.

2

The argument as to the proper interpretation of “ordinarily resident” was the first of three different ways in which the appellant (with the support of Swindon, the interested party) sought to make Worcestershire liable for JG's care costs under s.117(3). All three had at their root the argument that Worcestershire owed the original duty to pay for the cost of JG's care, and could not seek to export that liability to another local authority by moving her to their area. As explained in greater detail below, the second way in which the appellant put that argument before the judge is not pursued on appeal.

3

However the third way in which liability was said to rest with Worcestershire gives rise to the second ground of appeal. That involved a consideration of when the (agreed) duty owed by Worcestershire at the time of JG's first detention came to an end (if at all). Worcestershire argued that their duty ceased when JG was detained for the second time. The judge disagreed with that but found, on a basis that had not been argued before him, that Worcestershire's duty ceased when JG was released from that second period of detention. The appellant appeals against that conclusion.

4

As became apparent during the hearing of the appeal itself, it seems to me that this second ground of appeal properly arises for consideration first. That is because, if the judge was wrong, then there may be no answer to the appellant's proposition that the original (agreed) duty owed to JG by Worcestershire never came to an end, no matter what the result of the argument about where JG was “ordinarily resident” at the time of her second detention.

5

I set out the facts in Section 2 below. I identify (without, I hope, excessive repetition), the salient part of the judge's judgment in Section 3. I summarise the relevant parts of the legislation and the authorities in Section 4. Thereafter, I deal with the second ground of appeal (the continuing duty issue) in Section 5, and the first ground of appeal (the ‘ordinarily resident’ issue) in Section 6. There is a short summary of my conclusions in Section 7. I am very grateful to both counsel for their clear and fair submissions.

2

THE RELEVANT FACTS

6

The patient, JG, has a diagnosis of treatment resistant schizoaffective disorder. She became known to Worcestershire in about 2011/2012 when she was living in Evesham in a local authority property. There were issues with both her mental and physical health. She spent time in Newtown Hospital in Worcester. There is no dispute that, in March 2014, she was ordinarily resident in Worcestershire.

7

On 20 March 2014, JG was detained at Newtown Hospital under s.3 of the 1983 Act. In April 2014, following consultation with JG's daughter and others involved in JG's care, it was decided that it was in JG's best interests for her to move to a residential placement closer to her daughter in Swindon.

8

On 12 July 2014, JG's first period of detention came to an end and she was released to a care home in Swindon pursuant to s.117 of the 1983 Act. At this point she was still funded by Worcestershire. On 7 February 2015, following concerns that the first care home could no longer adequately meet JG's needs, Worcestershire moved JG to a second home in Swindon. JG's daughter was again part of the decision-making process. The placement in the second care home was again funded by Worcestershire.

9

On 27 May 2015, JG was detained in a hospital in Swindon under s.2 of the 1983 Act, for assessment. On 23 June 2015 she was detained for treatment under s.3 on the 1983 Act, again in Swindon. That was the start of her second period of detention.

10

On 4 August 2015, during her second period of detention, Worcestershire issued a termination notice to the care home in Swindon which had been accommodating JG. The judge found at [156] that it was a standard form notice addressed to the residential care home in which JG had been resident, simply instructing it in a single line with no explanation, to cease to supply services to her. Importantly, he found that this was not a decision by Worcestershire under s.117(2) of the 1983 Act that JG was no longer in need of after-care services.

11

On 12 November 2015, JG was discharged from detention under s.3 of the 1983 Act. She remained an in-patient. She was finally discharged from hospital on 9 August 2017. She was then in need of and received after-care services.

12

A dispute arose as to where JG was “ordinarily resident” immediately before she was detained under s.3 for the second time in June 2015, and which authority should pay for JG's after-care services from 9 August 2017, when she left hospital. The appellant was asked to determine this dispute under the mechanism provided for by s.40 (1) of the Care Act 2014 (“the 2014 Act”). On 11 May 2017, the appellant held that JG was ordinarily resident in Swindon, because that was where she was living immediately before her second period of detention. That conclusion was in accordance with the appellant's own statutory guidance issued pursuant to s.78 of the 2014 Act.

13

Swindon sought a review of that decision. On 28 February 2020, the appellant reversed his decision and decided that JG was in fact ordinarily resident in Worcestershire for “fiscal and administrative purposes”. That was a phrase taken from the judgment of Lord Carnwath in R (Cornwall CC) v Secretary of State for Health [2016] AC 137 (“ Cornwall”). In coming to that conclusion, the appellant acknowledged that it was at odds with his own guidance, but said that his change of mind was based on both the legislation and the case law. He indicated that he was in the process of considering how that guidance should be amended. Counsel informed us that, as a result of this litigation, that guidance has not been amended.

3

THE JUDGMENT BELOW AND THE TWO GROUNDS OF APPEAL

14

The judge's judgment at [2021] EWHC 682 (Admin) extends over 160 full paragraphs. It addresses in detail every point raised by each party.

15

At centre stage was the appellant's decision of 28 February 2020, in which he had quashed his original determination (to the effect that Swindon was the relevant local authority) and replaced it with a determination that the relevant local authority was Worcestershire. The judge said that Worcestershire's claim for judicial review of that decision required them to show that each of the three propositions on which it was based was wrong in law. Those three propositions were set out by the judge at [29] as follows:

“i) First: “That, applying the approach of the Supreme Court in R (Cornwall CC) v Secretary of State for Health [2016] AC 137, JG should be regarded as being ordinarily resident in the area of Worcestershire as at 23 June 2015 (immediately before the second period of detention), on the basis that Worcestershire had itself placed her in Swindon pursuant to its obligations to provide her with after-care under section 117 of the Mental Health Act 1983 following the first period. Though physically present and resident in Swindon at this date, she remained ordinarily resident in Worcestershire “for fiscal and administrative purposes” in the sense discussed by Lord Carnwath in paragraph 60 of the Cornwall judgment.” (“ Proposition 1”, emphasis added)

ii) Second, that where there has been a period of detention, immediately followed by a period of after-care services, immediately followed by a second period of detention, the words “ immediately before being detained” in section 117(3) of the 1983 Act require a decision as to the ordinary residence of the person immediately before they were first detained, rather than immediately before their most recent period of detention. Since JG was ordinarily resident in Worcestershire immediately before her first period of detention under section 3 of the 1983 Act, this was the place where she was ordinarily resident at all material times. (“ Proposition 2”)

iii) Third, that the effect of section 117(2) of the 1983 Act is that the duty to provide after care arising from a period of detention continues until a decision is made by “the clinical commissioning group or Local Health Board and the local...

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