The concept of ordinary residence is key to determining which local authority is responsible for meeting the care and support needs of an individual. A local authority only has a duty to an individual who is ordinarily resident in its area.

The case of R (Worcestershire County Council) v SSHSC brought into question which Council was responsible for after-care services under section 117 of the Mental Health Act 1983 (“MHA”) in a situation where the service user has been detained, released, and then detained again under the MHA.

The circumstances of this particular case were that the service user (“JG”) was detained under section 3 MHA in Worcestershire, then discharged by Worcestershire to a care home in Swindon, detained again under section 3 in Swindon, and finally discharged again.

When considering which authority had the responsibility of providing section 117 after-care services to JG, the Department of Health and Social Care (“DHSC”) maintained that the responsibility belonged to Worcestershire for the following reasons:

• JG was ordinarily resident in Worcestershire;
• Alternatively, section 117 specifies that responsibility is determined by where a service user is resident “immediately before being detained” and this is to be construed as meaning “immediately before being first detained”;
• Alternatively, the duty of Worcestershire to provide after-care services following JG’s first detention continued throughout her second detention.

In the High Court, Mr Justice Linden decided that Swindon Borough Council was responsible for funding the services, rejecting the DHSC’s above three lines of argument. The significant reason for this ruling was because JG had been living in the Swindon at the time of her second detention.

The government appealed the decision of the High Court and the case was then heard in the Court of Appeal. The Court of Appeal ultimately held that Worcestershire’s duty to a service-user continues until it is brought to an end by a decision under section 117(2) MHA that the service-user is no longer in need of aftercare services. In this case, such a decision had not been made regarding JG so Worcestershire’s duty continued throughout the second period of JG’s detention.

Lord Justice Coulson commented that “there could only be one duty at any one time. That duty rested with Worcestershire until it came to an end either on the facts or as a matter of law.” The Court of Appeal also confirmed that JG was ordinarily resident in Swindon immediately before her second detention. Lord Justice Coulson commented that “there is nothing in section 117 that could permit this court to conclude that, absent any decision by Worcestershire under section 117(2), the fact that JG had become ordinarily resident in Swindon immediately prior to the second period of detention somehow gave rise to a competition, and switched the relevant duty from Worcestershire to Swindon.”

The current position is therefore that there can only be one duty under section 117 at any one time. The local authority that is responsible for providing after-care services under section 117 MHA remains responsible unless and until there is a decision that the service user is no longer in need of those after-care services. The responsibility of that local authority continues regardless of a subsequent detention or a placement in the area of a different authority.

Disputes between local authorities as to who has responsibility to provide section 117 after-care will undoubtedly still arise. Such disputes must still be referred to the Secretary of State within four months of the date when the dispute arose, if they cannot be resolved between the authorities.

If you have concerns about a local authority providing you or somebody else with section 117 after-care services and want advice from a solicitor, our community care team at TV Edwards may be able to assist you. Please contact us on 020 3440 8100 or a_communitycarereferrals@tvedwards.com to make an enquiry.