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

A duty to provide after-care services under section 117(2) of the Mental Health Act 1983 automatically ends when the person is again compulsorily detained for treatment under a provision specified in section 117(1). A new duty arises upon the person’s subsequent discharge. Responsibility then falls on the authority for the area where the person was ordinarily resident immediately before the most recent detention.

“Ordinarily resident” bears its usual meaning. A placement funded by another authority is not disregarded unless legislation provides a deeming or disregarding rule. For a person lacking capacity, voluntariness and settled purpose are assessed by reference to the decision made lawfully on that person’s behalf.

JG, who lacked capacity to decide where to live, was ordinarily resident in Worcestershire before her first compulsory detention. On discharge, Worcestershire provided section 117 after-care accommodation for her in Swindon. She was later detained for treatment a second time.

The Secretary of State determined that Worcestershire remained responsible after the second discharge. Linden J allowed Worcestershire’s judicial review claim: [2021] EWHC 682 (Admin). The Court of Appeal reversed that decision, holding that Worcestershire’s original duty continued because no decision had been taken that JG no longer needed after-care: [2021] EWCA Civ 1957, [2022] PTSR 833.

The issues were whether the original duty ended on JG’s second detention and whether her residence in accommodation provided by Worcestershire prevented her from becoming ordinarily resident in Swindon.

1. Worcestershire’s appeal was allowed and the Secretary of State’s cross-appeal was rejected. The court declared that Swindon, not Worcestershire, owed the section 117 duty following JG’s second discharge. Lord Hamblen and Lord Leggatt gave the joint judgment, with which Lord Reed, Lord Burrows and Lord Richards agreed.

2. The duty under section 117(2) of the Mental Health Act 1983 is owed only to a person to whom section 117 presently applies. The concept of after-care and the language of sections 117(1) and 117(6) show that it does not apply while the person is detained for treatment under section 3 or another provision specified in section 117(1). Such detention automatically terminates the existing duty. No separate decision that after-care is no longer needed is required: paras 44–54.

3. Planning for care after discharge is not itself the provision of after-care services. Authorities may have a discretionary implied power to plan and prepare, but that does not establish a subsisting duty to provide after-care during detention: para 51. Voluntary admission or detention for assessment under section 2 does not terminate the duty, because neither is detention for treatment of the kind specified in section 117(1): paras 52–53.

4. On discharge from the later detention, a new duty arose. Under section 117(3), responsibility depended on where JG was ordinarily resident immediately before that detention. “Ordinarily resident” bears its usual meaning: residence voluntarily adopted for settled purposes as part of the regular order of life. Involuntariness is narrowly confined to situations of forcible detention. A lack of alternative accommodation does not prevent ordinary residence: paras 54–58.

5. Where a person lacks capacity to choose where to live, the mental elements of the ordinary residence test are supplied by considering the state of mind of the person or body empowered to decide on that individual’s behalf. JG’s residence in Swindon was voluntarily adopted through the lawful decision made for her and had the necessary settled purpose: para 58.

6. The placing authority’s statutory responsibility did not create a special rule requiring JG’s residence in Swindon to be disregarded. Section 117 contains no deeming provision and is a free-standing regime. The reasoning in R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46 was confined to interacting statutory regimes containing parallel deeming or disregarding provisions. The 2014 amendment substituting “ordinary residence” did not import the rules governing ordinary residence under the Care Act 2014: paras 59–87.

1. United Kingdom Supreme Court: Allowed Worcestershire’s appeal, rejected the Secretary of State’s cross-appeal and declared that Swindon owed the duty after the second discharge: [2023] UKSC 31.
2. Court of Appeal: Allowed the Secretary of State’s appeal and held that Worcestershire’s original duty continued because no decision had been taken that JG no longer needed after-care: [2021] EWCA Civ 1957, [2022] PTSR 833.
3. High Court, Administrative Court: Allowed Worcestershire’s judicial review claim and held that Swindon became responsible following the second discharge: [2021] EWHC 682 (Admin).