On 22 March 2021, judgment was handed down in favour of Worcestershire County Council in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council (‘the Worcestershire case’).
The main issue in this case is: which local authority should pay for the after-care services which have been provided to JG following her discharge from her second period of detention
The resolution of this issue depends on where JG was "ordinarily resident" … "immediately before being detained" for the purposes of section 117(3)(a) of the 1983 Act
The DHSC has subsequently (21 April) confirmed that it is seeking to appeal. The Secretary of State has lodged an application for leave to appeal in the Court of Appeal.
In a very detailed judgment Justice Linden concluded, that "The approach which I have taken is clearly at odds with parts of the Secretary of State's Care Act Guidance, and in particular with paragraph 19.64 of that guidance. I have had regard to that guidance, but it cannot override what I regard as the correct interpretation of the relevant primary legislation and the case law. The Secretary of State is in the process of considering how the Care Act Guidance should be amended, on this and other related points, in light of the approach taken to this and a number of other similar cases."
Paragraph 19.64 of the Statutory Guidance:
Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the 1983 Act, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.
The Secretary of State for Health and Social Care has published 8 determinations on this issue, including ‘Ordinary residence 7: 2020’, which is the subject of the Worcestershire case.