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s.117 Which authority pays? There are no more excuses.

Just before Christmas 2021 the Court of Appeal made their much-anticipated decision following the hearing which took place on 2nd December 2021.

It focused on which Local Authority should pay for s.117 Mental Health Act 1983 aftercare provided to the patient (JG) following discharge from a second period of detention on s.3?

This wasn’t to do with which authority would be best placed to continue to care for JG, it was about who will foot the bill.

The financial benefits to those under s.117 can be huge as provision for care cannot be charged for irrespective of how rich or poor a person may be. Likewise, the costs to local authorities where s.117 applies can be very substantial and can last for a person’s lifetime.

s.117 states that it is a joint duty on health and social services to provide after care to those who are eligible to receive it (if you have been detained on the long term sections s.3, s.37, s.45A, s.48 & s.49 MHA)

Since amendments to s117(3) of the Mental Health Act were introduced by the Care Act 2014, it now defines ‘ordinary residence’ as being where the person was living ‘immediately before being detained’.

The arguments were over the interpretation of those words.

JG, from Worcestershire had, following an admission to hospital under S.3, been transferred to a care home in Swindon in order to be nearer to his family. This care home was funded under s.117 by Worcestershire.  

Whilst living in Swindon, JG was detained again under S.3 and the care home placement was terminated.

The question – who was responsible for subsequent s.117 costs? Was it Worcestershire, where he was originally detained or was it Swindon, where he was subsequently detained? Initially it was for the Secretary of State for Health and Social Care, using his dispute resolution procedures, to resolve the meaning of ‘immediately before being detained’.

The Secretary of State decided that Swindon was responsible for s.117 as JG was ordinarily resident there immediately before being detained’ and he referred to its own Care and Statutory Support Guidance.

However, this was not the end of the matter. Swindon then sought a review of this and upon doing so, the Secretary of State reversed his decision and decided that JG was the responsibility of Worcestershire and accepted that their own guidance was wrong.

The Secretary of State then stopped making further determinations from other authorities in dispute on similar matters until the outcome of the court challenge was decided. It now has been.

It is very clear that the outcome has major financial implications for some local authorities.

The next stage was the High Court. They decided in favour of Worcestershire and the original position of the Secretary of State. It would be Swindon who paid as it was there that JG was detained.

Essentially the test that local authorities have applied before this namely where was the person living when they were sectioned?

The Court of Appeal has now overturned the decision of the High Court following Judicial Review by Worcestershire, which also overturned the Secretary of State for Health’s original decision to reverse his original decision.

The Court of Appeal decided that JG is ordinarily resident in Swindon, however the s.117 responsibility continued to lie with Worcestershire because the original duty to provide s.117 aftercare services continue until such a time as a person is ‘no longer in need of such services.

Since my article published early January 2022, there has been an update in respect of this case.

Worcestershire County Council have lodged an application for leave to appeal to the Supreme Court. The implications of this are that ordinary residence disputes between authorities will continue to be stayed until a final decision is handed down by the Supreme Court. The Department of Health and Social Care will then produce updated guidance following this decision.

As I have highlighted above, these disputes must not leave a person without aftercare.

Once s.117 responsibility is established by the initial long-term section, then an authority will continue to be financially responsible until the person is ‘no longer in need of such services’.

For many with ongoing mental health problems that justified long term sectioning, this could in effect be for life.

Whichever, if local authorities remain in dispute about who pays it is important to remember that arguments regarding responsibility must not leave a person without aftercare.

Here is an extract from the Care Act 2014 which addresses this matter succinctly: –

The Care and Support (Disputes Between Local Authorities) Regulations 2014

Responsibility for meeting needs whilst dispute is unresolved

2. (1) The authorities must not allow the existence of the dispute to prevent, delay, interrupt or otherwise adversely affect the meeting of the needs of the adult or carer to whom the dispute relates.

(2) The local authority which is meeting the needs of the adult or carer on the date on which the dispute arises must continue to meet those needs until the dispute is resolved.

(3) If no local authority is meeting the needs on the date on which the dispute arises—

(a) the local authority in whose area the adult needing care is living; or

(b) if the adult needing care is not living in the area of any local authority, the local authority in whose area that adult is present,

must, until the dispute is resolved, perform the duties under Part 1 of the Act in respect of the adult or carer as if the adult needing care was ordinarily resident in its area.

As a result of this case there should now be no ambiguity as to which local authority is s.117 responsible.  The simple question is, where were they when they received a section that triggered s.117?

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