Worcestershire County Council v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 22 March 2021 |
| Neutral Citation | [2021] EWHC 682 (Admin) |
| Date | 22 March 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1935/2020,CO/1935/2020 |
The Queen on the application of
and
[2021] EWHC 682 (Admin)
Mr Justice Linden
Case No: CO/1935/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Lee Parkhill (instructed by Heather Griffiths, Solicitor, Worcestershire County Council for the Claimant)
Mr Tim Buley QC (instructed by the Government Legal Department) for the Defendant
Ms Peggy Etiebet (instructed by Daryl Bigwood, Solicitor, Swindon Borough Council) for the Interested Party
Hearing dates: 17 and 18 December 2020
Approved Judgment
INTRODUCTION
The hearing of this claim for judicial review was conducted in public via Microsoft Teams.
Mr Lee Parkhill appeared for the Claimant, Mr Tim Buley QC for the Defendant and Ms Peggy Etiebet for the Interested Party. Their written and oral submissions were very helpful and clear, and I am grateful to all of them.
THE ISSUES
JG has a diagnosis of treatment resistant schizoaffective disorder, as a consequence of which she was detained in hospital pursuant to section 3 of the Mental Health Act 1983 from March to July 2014, and then from May to November 2015. Between these two periods of detention she was provided with after-care services, pursuant to section 117 of the 1983 Act, which were funded by the Claimant (“Worcestershire”). These services included the provision of accommodation in Swindon.
The main issue in this case is: which local authority should pay for the after-care services which have been provided to JG following her discharge from her second period of detention on 12 November 2015 and, subsequently, from hospital? Mr Parkhill, on behalf of Worcestershire, argues that it is Swindon Borough Council (“Swindon”) whereas Mr Buley, on behalf of the Defendant, and Ms Etiebet on behalf of Swindon, argue that it is Worcestershire. The resolution of this issue depends on where JG was “ ordinarily resident” … “immediately before being detained” for the purposes of section 117(3)(a) of the 1983 Act. There is also an issue as to the circumstances in which a duty to provide after-care services under section 117 comes to an end and, in particular, whether it is automatically brought to an end if the person is detained again under section 3 of the 1983 Act.
THE FACTUAL BACKGROUND
The factual basis on which the decision of the Defendant which is challenged in this case was taken, can be briefly stated.
In 2011/2012 JG became known to Worcestershire for the first time, when she was living in Evesham in a local authority property. At this stage she required a short-term care package because of her mental and physical health.
On 30 July 2012, JG was informally admitted to Athelon Ward in Newtown Hospital in Worcester where it was found that she was experiencing auditory hallucinations which suggested that her neighbours were a threat to her family. In October 2012, December 2012, and March 2013, JG had periods of leave from hospital but during these periods of leave she quickly became paranoid and agitated about the intentions of her neighbours.
On 12 August 2013, alternative accommodation in Worcester was found for JG on the basis that this would take her away from her neighbours in Evesham. This move was unsuccessful, and JG was readmitted to Athelon Ward on 21 November 2013, as an informal patient, and then detained under section 3 of the 1983 Act on 20 March 2014. I will refer to this as the first period of detention.
On 30 April 2014, Worcestershire assessed JG as lacking the capacity to decide where to live. 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.
On 12 July 2014, Worcestershire therefore moved JG to a care home in Swindon pursuant to section 117 of the 1983 Act. This was the end of the first period of detention.
On 7 February 2015, Worcestershire then moved JG to a second care home in Swindon because there were reports that the first care home could no longer adequately meet her needs. Worcestershire consulted JG's daughter as part of the decision-making process which led to this move, and the placement at the second care home was also funded by Worcestershire pursuant to section 117.
On 27 May 2015, JG was detained in a hospital in Swindon under section 2 of the 1983 Act, i.e. for assessment, as a result of her deteriorating mental health and challenging behaviour. On 23 June 2015, she was detained under section 3 of the 1983 Act i.e. for treatment, also in Swindon. I will refer to this as the second period of detention.
On 4 August 2015, Worcestershire issued a termination notice to the care home in Swindon which had been accommodating JG. I will return to the contents and effect of this notice below.
On 12 November 2015, JG was discharged from detention under section 3 of the 1983 Act. However, she remained an in-patient and was subject to a standard authorisation, made pursuant to Schedule A1 to the Mental Capacity Act 2005, because she lacks decision making capacity, including the capacity to make decisions about where she lives. She was discharged from hospital on 9 August 2017.
A dispute then arose as to where JG was ordinarily resident immediately before she was detained under section 3, and which authority should therefore pay for JG's care from 9 August 2017, when she left hospital. The Defendant was asked to determine this dispute under the mechanism provided for by section 40(1) Care Act 2014 and, on 11 May 2017, he held that she was ordinarily resident in Swindon, essentially on the basis that this was where she was living immediately before the second period of detention. This conclusion was also in accordance with the Defendant's statutory guidance “Care and support statutory guidance” issued pursuant to section 78 Care Act 2014, at paragraphs 19.62–19.68 in particular.
Swindon then sought a review of the 11 May 2017 decision pursuant to section 40(2) of the 2014 Act. On 28 February 2020 the Defendant reversed that decision and decided that JG was in fact ordinarily resident in Worcestershire for the relevant purposes. In coming to this conclusion, at paragraph 35 the Defendant acknowledged that:
“The approach which I have taken is clearly at odds with parts of the Secretary of State's Care Act Guidance, and in particular with paragraph 19.64 of that guidance. I have had regard to that guidance, but it cannot override what I regard as the correct interpretation of the relevant primary legislation and the case law. The Secretary of State is in the process of considering how the Care Act Guidance should be amended, on this and other related points, in light of the approach taken to this and a number of other similar cases.”
The correctness or otherwise of the Defendant's decision of 28 February 2020, and in particular the analysis of the law on which it is based, is what is in issue in the Claim.
THE RELEVANT PROVISIONS OF THE MENTAL HEALTH ACT 1983 .
For present purposes, the key powers of detention under the Mental Health Act 1983 are set out in sections 2 and 3. Section 2 of the 1983 Act provides for the admission to hospital and detention of a person for assessment on the grounds that they are suffering from a relevant mental disorder and it is in their interests or the interests of others that this step be taken. Section 3 then provides for a patient to be “admitted to a hospital and detained there” for treatment on the grounds that:
“(2) ….
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
……..
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.”
Sections 117(1) of the 1983 Act provides:
“ 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.” (emphasis added)
Section 117(1) therefore identifies a class of individuals, namely those who have been detained in hospital for the purposes of treatment (see sections 37(2)(a)(i), 45A(2)(b), 47(1)(b) and 48(1(a)) and who then cease to be detained and leave hospital. In the light of the arguments in the case, I note that the words in brackets at the end of section 117(1) tend to emphasise that those who fall within this class must also have left hospital.
Section 117(2) of the 1983 Act then states the duty which is owed to this class of individuals and by which bodies:
(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...
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