Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care

For the purposes of Mental Health Act 1983 section 117, responsibility for after-care following a period of detention is determined by the person’s ordinary residence immediately before that period of detention. Accommodation provided as after-care under section 117 is not automatically disregarded when ordinary residence is assessed. The approach under the Children Act 1989 and the National Assistance Act 1948 cannot be transferred to section 117 without a corresponding statutory deeming provision. A later period of detention creates a fresh question of responsibility on discharge, although an existing section 117 duty is not automatically terminated without a needs-based decision under section 117(2).

Worcestershire County Council challenged the Secretary of State’s decision that Worcestershire remained responsible for funding JG’s after-care following her discharge from a second period of detention under section 3 of the Mental Health Act 1983. JG had previously been detained, provided with after-care accommodation in Swindon, and later detained again in Swindon. The Secretary of State relied on three propositions: that JG remained ordinarily resident in Worcestershire because Worcestershire arranged her accommodation; that the relevant detention was the first detention; and that Worcestershire’s original section 117 duty continued until formally terminated. The central questions were the meaning of ordinary residence under section 117(3) and the effect of a subsequent detention on an existing after-care duty.

1. Claim allowed. The Secretary of State’s decision dated 28 February 2020 was quashed because it was based on errors of law.
2. Section 117(3) fixes ordinary residence at the point immediately before the relevant detention. The court rejected the argument that accommodation arranged under section 117 necessarily leaves ordinary residence unchanged. The statutory deeming provisions in the Children Act 1989, National Assistance Act 1948 and Care Act 2014 applied only within their statutory contexts and had no equivalent in section 117.
3. The reasoning in R (Cornwall CC) v Secretary of State for Health [2016] AC 137 was confined to the statutory context of the 1989 and 1948 Acts. It did not establish a general rule that accommodation provided pursuant to any statutory duty cannot affect ordinary residence under section 117.
4. Section 117 is freestanding. Where a person has a second period of detention under section 3, responsibility for after-care arising on discharge from that detention is determined afresh under section 117(3), by reference to ordinary residence immediately before the second detention. JG was ordinarily resident in Swindon at that time, so Swindon was responsible for the after-care arising from the second detention.
5. An existing section 117 duty does not automatically end merely because the person is detained again. Section 117(2) requires a joint, needs-based decision by the responsible health body and local social services authority that after-care services are no longer needed. That decision was not required, however, to transfer responsibility for after-care arising from the second detention to Swindon.
6. The termination notice issued by Worcestershire was not a valid section 117(2) decision. It was an administrative termination of accommodation, made by one body, and did not address JG’s needs or all relevant after-care services.

Not stated in the judgment.