Which local authority pays for aftercare after repeated detentions? DHSC’s current position on determinations on s117 Mental Health Act 1983 disputes

Section 117 of the Mental Health Act 1983 (“MHA”) imposes a duty on both local authorities and CCGs to provide after care services to patients who have been detained in hospital for treatment on more than one occasion under s3 MHA.

In March 2021, the High Court ruled in R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council [2021] EWHC 682 that in cases involving multiple hospital detentions under s3 MHA, the duty to provide aftercare services falls on the local authority/CCG where the patient lived immediately before the most recent period of detention, and not a local authority or CCG who funded an earlier period of s117 aftercare. As to where the person lived, the statutory term “ordinary residence” was held to have a different meaning here than under social care legislation and the Cornwall case.

The Secretary of State appealed against this decision and suspended decision making on similar cases until final determination. Thus, ‘ordinary residence’ disputes raising similar issues to those in the Worcestershire case will continue to be stayed until there is a final clarification as to the correct approach to ordinary residence for the purposes of section 117(3) of the Mental Health Act 1983. Consequently, in the absence of exceptional circumstances in a particular case, no new determinations will be made on cases which raise similar issues after 2 June 2020, until the outcome of the case is known.

The case has been granted permission to appeal and has a listing window for the present court term.

By virtue of regulation 3(7) of the Care and Support (Disputes between Local Authorities) Regulations 2014/2829 disputes must still be referred to the Secretary of State if the local authorities in dispute cannot resolve the dispute within 4 months of the date on which it arose. On receipt of a referral, DHSC will consider, on a case-by-case basis whether the case raises issues similar to the Worcestershire case and, depending on that consideration, how to treat that referral. However, such disputes should not result in a gap to provision of services.

The updated guidance on this issue can be accessed here.

Leon Glenister is an expert across public law, including health and social care law.

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