Supreme Court clarifies who is responsible for the provision of ‘after-care services’ under s.117 of the Mental Health Act 1983

In R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31, the Supreme Court considered which of the two local authorities is responsible for providing and funding ‘after-care services’ under s.117 of the Mental Health Act 1983.

The issue

S.117 places a duty on health authorities and local social services to provide or arrange the provision of after-care services for people who have been detained under the Mental Health Act and then “cease to be detained and … leave hospital”. That the duty continues “until such time as the [relevant authority is] satisfied that the person concerned is no longer in need of such services.” S.117(3) provides that the relevant authority owing the after-care duty is the authority in which the person concerned was “ordinarily resident … immediately before” being detained.

In Worcestershire CC, the individual in question, JG, was receiving after-care services in Worcestershire after being detained under the Mental Health Act. She was then placed by Worcestershire in a different local authority, Swindon, where she was re-detained a few months later.

On the face of the statute, both local authorities owed JG after-care obligations upon her second discharge. But it was common ground throughout the proceedings that parliament cannot have intended for there to be two parallel duties owed by two different local authorities to provide after-care services for the same individual at the same time. This, as the Supreme Court observed, would “be a recipe for disputes between local authorities and risk logistical chaos”.

The puzzle for the Supreme Court was therefore to determine which of the two local authorities was responsible for JG’s after-care services when she was discharged.

The decision

The Supreme Court overturned the Court of Appeal’s decision and held that the second authority, Swindon, took on responsibility under s.117.

Section 117

Lord Hamblen and Lord Leggatt, with Lord Reed, Lord Burrows and Lord Richards agreeing, rejected Worcestershire’s primary case that its duty to provide after-care services ended on the second discharge. This Court rejected this interpretation on the basis that it required additional wording to be read into s.117 that could not be justified by the statutory language and purpose.

The Court also rejected that Secretary of State’s argument that the duty imposed by s.117(2) continued until an express decision was taken to terminate the after-care services. Worcestershire’s duty had therefore continued unterminated, and no new duty owed by a different local authority could arise. This argument, which had succeeded in the Court of Appeal, failed to explain why a duty did not concurrently also arise upon Swindon on the second discharge.

The Court’s answer was that the duty to provide after-care services ended at the point that the person in question was compulsorily detained under s.3 of the Mental Health Act the second time. At that point, she was no longer a person who had “ceased to be detained and has left hospital” so the criteria in s.117(1) were no longer met. A new duty under s.117(2) can therefore arise when the individual leaves hospital at the end of that period of detention. Under this interpretation, no competing concurrent duties arise.

The Court reasoned that this answer was in keeping with the language and purpose of the statute. Where a person has been receiving after-care services and has been re-detained, it is inherent that they no longer have need for after-care services. It is therefore unnecessary for the relevant authority to take a decision that they are satisfied that the person concerned is no longer in need of such services under s.117(2).

Ordinary residence

The Supreme Court continued to consider the Secretary of State’s cross-appeal, which concerned whether JG had been ordinarily resident in Swindon immediately prior to her second detention.

The Secretary of State argued that the effect of the Supreme Court’s decision in R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46 is that any placement by a local authority under its statutory care duties should be disregarded when determining where a person is ordinarily resident.

The Supreme Court rejected this argument, preferring to confine the effect of Cornwall to the specific statutory scheme that the judgment concerned. In s.117, the words “ordinarily resident” must be given their usual meaning and must be determined by reference to where the person was living immediately before their latest detention.

Tim Buley KC and Natasha Jackson acted for the Secretary of State for Health and Social Care in the Supreme Court.

This article was written by Natasha Jackson, a public and administrative law barrister at Landmark Chambers.