On 10 August 2023, the Supreme Court handed down its judgment in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31 (“Worcestershire case”).
Background to the Worcestershire case
This case involved a person (“JG”) who suffers from treatment-resistant schizoaffective disorder. JG was detained under section 3 of the Mental Health Act 1983 (“MHA 1983”) on two separate occasions in 2014 and 2015. The case concerned who is responsible for providing after-care services under s.117 MHA 1983 in circumstances where a person has been detained in hospital under s.3 MHA 1983 on more than one occasion.
- First detention
In March 2014, when JG was living in Worcestershire, she was first detained under s.3 MHA 1983 for treatment in hospital. It was decided that it was in JG’s best interests for her to move to a residential placement closer to her daughter in Swindon, Wiltshire. In July 2014, JG was discharged from hospital into a care home in Swindon for after-care services under s.117 MHA 1983 which brought her first detention to an end. JG’s after-care services were funded by Worcestershire Council County (“Worcestershire CC“).
In February 2015, Worcestershire CC moved JG to a second care home in Swindon because the first care home could no longer adequately meet her needs. The placement was also funded by Worcestershire CC.
- Second detention
In June 2015, JG was detained on a second occasion under s.3 MHA 1983 for treatment in a hospital in Swindon. In November 2015, JG was discharged from hospital but she remained an in-patient because she lacked decision-making capacity. In August 2017, JG was discharged from hospital to receive after-care services.
Issues
A dispute arose between Worcestershire CC and Swindon Borough Council (“Swindon BC”) as to where JG was ordinarily resident immediately before the second detention and which of them was responsible under s.117 MHA 1983 for providing after-care services for JG following the second discharge from hospital.
Supreme Court Judgment
The Secretary of State argued that ordinary residence is determined by reference to where the person was living immediately before their first detention i.e in this case, Worcestershire. This argument was rejected by the Supreme Court which held that ordinary residence should be determined by reference to where the person was living immediately before their most recent detention. In this case, JG was ordinarily resident in Swindon immediately before her second detention. This meant that following JG’s second discharge from hospital, Swindon BC and not Worcestershire CC had the duty to provide after-care services for JG under s.17 MHA 1983.
Comment – what does this judgment mean in practice?
The concept of ordinary residence serves as a mechanism for apportioning responsibility (and funding) between local authorities for the provision of aftercare services under s.117 MHA 1983. The Worcestershire case now provides further clarity around this. In addition, the case also acts as a reminder to providers that they should pay careful attention to who is responsible for paying their fees.
There is a legal obligation on a local authority to pay a care provider fees for service users who are receiving s.117 MHA 1983 aftercare. However, whilst this is a legal obligation, in reality local authorities are constrained by tight budgets and as a result are sometimes reluctant to accept responsibility for funding service users’ care and fail to pay fees.
In practice, providers are often put under pressure by local authorities to accept service users on an urgent basis whether they are receiving s.117 after-care services or not. In turn, providers can feel pressured into accepting a service user before discussing the important topic of who is responsible for paying their fees.
At Ridouts, we advise providers to ensure that the body/person responsible for paying fees is confirmed in writing, preferably by way of a contract, before accepting the placement. With service users receiving s.117 after-care services it is also important to establish who will pay the service user’s fees when their s.117 after-care provision comes to an end.
Conclusion
Providers should remember that if a local authority has failed to pay them for their services and these payments are legitimately due, this is a breach of contract and loses suffered should be reclaimed from the local authority. It is also important for providers to take action at an early stage before a placement becomes unviable.
Ridouts has a vast amount of experience in providing advice to clients in relation to fee dispute matters and advising on their prospects of success. If you have any queries in relation to the above, please contact us on 0207 317 0340 and one of our specialist lawyers will be happy to help.
