I have written before about how ordinary residence is to be determined, in cases where an individual is admitted to hospital under section 3 Mental Health Act 1983 whilst already in receipt of s117 aftercare. My previous post summarised the legal position following the High Court’s decision in the Worcestershire case. At that point, an appeal was pending.
The Court of Appeal has now determined the issue, and the High Court’s decision has not been upheld.
There appear to have been 2 issues considered at this appeal stage: 1) whether the readmission to hospital or subsequent discharge brings the initial aftercare duty to an end and 2) whether the Shah test had been properly applied when determining ordinary residence for s117 aftercare purposes. As I predicted in my post about the High Court judgement, it was as the first question (which formed the second ground of appeal) that prompted the more detailed consideration by the Court of Appeal.
On the first point, the High Court had determined that whilst the readmission to hospital did not bring the original s117 duty to an end, a new duty was created on discharge, which brought the initial duty to an end. This matters, because a new duty means ordinary residence needs to be determined again. But if the initial duty continues, then the original authority will retain the responsibility.
The latest judgement changes the position, finding that the initial local authority’s duty to provide aftercare services continued. The reasoning for the decision is straightforward: s117 starts the duty is triggered by admission to hospital under a relevant section of the Mental Health Act 1983 and can only be brought to an end by discharge in accordance with s117(2). The Act makes no provision for the s117 duty to be brought to an end by any other means.
Both the High Court and Court of Appeal agreed that only one duty under s117 can exist at any one time, since it would be unnecessary and unworkable to have 2 authorities trying to provide complimentary aftercare packages.
So following the Court of Appeal’s judgement, which we have to, that first duty continues and so no second duty is triggered.
What the latest judgement doesn’t do, is alter the position in terms of the definition of ordinary residence for aftercare purposes. The court did not apply the Care Act deeming provisions to s117 scenarios, on the basis that the wording if the legislation does not explicitly apply them and such an application cannot be implied. It applied the Shah test and did not consider that the financial and administrative arrangements affected the ordinary residence position.
What this means is that if P is placed by Local Authority A in the area of Local Authority B under s117 aftercare, then Local Authority A will remain responsible for providing aftercare services until such time as P is discharged from s117 in accordance with s117(2). If P is readmitted to hospital, Local Authority A will continue to be under a duty to provide aftercare services. And it is Local Authority A that will need to be involved in discharge planning, not Local Authority B for the duration of their detention.
This might create some practical challenges if P is not detained in a hospital that is local to Local Authority A, and discharge planning policies will need to be updated to ensure that Responsible Clinicians and other professionals liaise with the correct local authority from an early stage, rather than simply contacting the local authority they work with regularly. Teething problems are to be expected, I would think, as it will always be tempting to look to the local authority with whom Trusts and clinicians will have established and longstanding relationships. But it is hardly insurmountable, especially if aftercare plans are available on readmission which clearly identify the local authority and allocated social worker.
What the judgement also means is that if P has been placed out of area by Local Authority A, but not under s117, then responsibility for aftercare should be determined by application of the Shah test not the Care Act 2014 deeming provisions in s29. So if P has voluntarily adopted their residence in the area of Local Authority B, by choosing an out of area care home under the choice of accommodation regulations, for example, then Local Authority A will not automatically be responsible for aftercare. For example, P is placed in supported living in Local Authority B’s area under S18 Care Act but then sometime later experiences a mental health crisis requiring hospital admission for treatment then Local Authority B may be responsible for P’s aftercare. But it will be necessary to look at how long P has been living there, where P considers to be their home, whether the move was intended to be long-term and all the other usual factors to decide if the residence has been voluntarily adopted for settled purposes.
As I set out in my last post about this case, it was only ever going to affect a small number of cases. But the cases affected may be more likely to be complex, especially if out of area placements are made due to lack of suitable local options. But the number of cases where this judgement will need to be considered is now even lower.
With a bit of luck, revised statutory guidance will be released in the near future. But in the meantime, I will revise my ‘cheat sheet’ and make that available to assist you in applying this judgement in practice.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation