Worcestershire County Council (R on the application of) v Secretary of State for Health and Social Care

Once the after-care duty under Mental Health Act 1983 section 117(2) has arisen, it continues until the relevant bodies decide that the person is no longer in need of after-care services. A later detention, release or change of ordinary residence does not automatically terminate or transfer that duty.

For section 117(3), ordinary residence generally means the person’s actual settled residence. The word “ordinarily” does not itself create a fiscal or administrative deeming rule. The policy-based reasoning in Cornwall, which depended on different statutory deeming provisions, could not be read across to section 117.

JG was detained under section 3 of the Mental Health Act 1983 in 2014 while ordinarily resident in Worcestershire. After her release, Worcestershire funded after-care in Swindon. JG was detained again in Swindon in 2015 and later discharged from hospital.

The Secretary of State first determined that Swindon was responsible, but later reversed that decision and identified Worcestershire. On judicial review, Linden J held that JG was ordinarily resident in Swindon but that Worcestershire’s duty had ended when she was released from the second detention: [2021] EWHC 682 (Admin). The appeal concerned whether the original duty continued and, alternatively, where JG was ordinarily resident immediately before the second detention.

1. Disposition. The appeal was allowed on the continuing-duty ground. The ordinary-residence ground was dismissed in the alternative. Worcestershire remained the local authority responsible for JG’s after-care.
2. Section 117(2) states that the duty continues until the clinical commissioning group and local social services authority are satisfied that the person is no longer in need of after-care services. No such decision had been made by Worcestershire. The statutory wording did not permit the court to imply an automatic termination when JG was detained again or released from her second detention.
3. There was no competition between rival duties. Only one section 117 duty existed at any time, and Worcestershire’s original duty continued unless ended on the facts or by a decision under section 117(2). Treating re-detention or a change of residence as automatically transferring the duty would create uncertainty, undermine continuity of care and render the statutory termination mechanism ineffective.
4. Alternatively, JG was ordinarily resident in Swindon immediately before her second detention. Applying the ordinary approach in Shah, Swindon was the place adopted for her settled residence and formed part of the regular order of her life: R v London Borough of Barnet Ex parte Shah [1983] 2AC 309.
5. Hertfordshire remained binding. It treated section 117 as a freestanding scheme and fixed responsibility by reference to where the service user was resident, without importing the deeming provisions in the National Assistance Act 1948. The amendments made by the Care Act 2014 were not sufficient to displace that approach. The addition of “ordinarily” did not itself create a deeming rule, and section 39(4) recognised that the two statutory regimes were distinct.
6. Cornwall concerned different provisions in the National Assistance Act 1948 and the Children Act 1989, including deeming and disregarding provisions. Its policy-based reasoning could not be read across to section 117 so as to displace Hertfordshire: R (Cornwall CC) v Secretary of State for Health [2016] AC 137.

• Court of Appeal (Civil Division): Appeal from [2021] EWHC 682 (Admin) allowed on the continuing-duty issue. The ordinary-residence issue was determined against the appellant in the alternative.
• Administrative Court: Linden J held that JG was ordinarily resident in Swindon, but concluded that Worcestershire’s section 117 duty ended on her release from the second detention: [2021] EWHC 682 (Admin).