The case concerned a dispute about which of two local authorities, Swindon Borough Council (Swindon) and Worcestershire County Council (Worcestershire) - was under a duty to arrange section 117 aftercare for a service user, JG.
JG was first detained whilst ordinarily resident in Worcestershire and upon discharge, her aftercare services were funded by Worcestershire. As part of that arrangement, Worcestershire placed JG in an out of area residential placement in Swindon. Whilst living in Swindon, JG was detained for a second time under the MHA 1983. The dispute between the local authorities concerned which of them would be responsible for JG’s aftercare following her discharge from this second period of detention.
The SoS was approached by the local authorities to determine the dispute without resource to the courts. The SoS initially found that pursuant to section 117(3) MHA 1983, Swindon was the responsible authority, on the basis that JG was “ordinarily resident” in Swindon immediately prior to her second period of detention. Upon review, however, the SoS revised his decision and concluded that in fact JG was ordinarily resident for purposes of section 117 in Worcestershire and so Worcestershire was the responsible authority.
The SoS’s revised decision was the result of him following the Cornwall case, with the effect that JG was deemed to be “ordinarily resident” in Worcestershire despite being actually resident in Swindon for fiscal and administrative policy reasons.
The appeal was in fact a simple matter: there could be no competing section 117 duties and, Worcestershire having never made a decision to discharge JG from section 117 at any time, had retained the section 117 duty through her second period of detention and beyond.
Despite this, Lord Justice Coulson went on to tackle the much more complex matter of ordinary residence as it applies in the test at section 117(3). In doing so, he has provided a considered and helpful judgment that should provide those involved in section 117 aftercare with some much-needed clarity, at least for now.
You can read the judgment here.
Further considerations for NHS clients
The Worcestershire appeal judgment is relevant when determining the CCG responsible for commissioning section 117 aftercare pursuant to section 117. However, paragraph 18 of NHS England’s Who Pays? guidance still applies for purposes of determining the NHS commissioner responsible for funding it. This means the impact of the judgment for NHS bodies is more limited, because they must continue to have regard to Who Pays? guidance when determining funding responsibility.
It would appear that a consequence of the judgment is that, because of the wording of section 117(2), aftercare must be provided until the local authority and NHS commissioner with statutory responsibility for the provision are “satisfied that the person concerned is no longer in need of such services”.
Consequently, where the funding CCG and the CCG with statutory responsibility are not the same, then the funding CCG, if it is managing the package, will need to make sure its review process includes arrangements to satisfy this requirement, or else a decision to discontinue services may not be lawful.
Disputes between NHS commissioners over section 117 responsibilities should continue to be managed in accordance with the resolution procedure provided for in Who Pays? but we suggest that commissioners expressly bring the Worcestershire decision to the attention of those involved in the dispute where it may be relevant to the outcome to ensure it is not missed.
Categories of patient for which a CCG may have responsibility for arranging section 117 services by virtue of The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (Standing Rules Regulations 2012).
Our NHS clients should note that the judgment concerned, as it was a dispute between local authorities, appears to have no bearing on Regulation 14 of The Standing Rules Regulations 2012, which functions to impose the section 117 duty on a CCG other than the CCG in whose area the patient was ordinarily resident, immediately prior to detention where the patient falls into one of several specified categories. As such, NHS commissioners will still need to have regard to those categories of person when determining commissioning responsibility.