Responsibility disputes
19.126The Care Act 2014 has amended section 117 of the MHA 1983 to make it considerably clearer which authority bears responsibility for the provision of after-care services. The authority responsible will be:
•the authority where the patient was ordinarily resident immediately before being detained, if that was in England or Wales; otherwise,
•the authority for the area in which the person concerned was resident; otherwise,
•if the patient has no residence, that can be ascertained, the local authority for the area to which the patient is sent on discharge:
1R v Mental Health Tribunal ex p Hall [2000] 1 WLR 1323; R v Sunderland CC v South Tyneside Council [2012] EWCA Civ 1232, (2012) 15 CCLR 701, at para 46 (‘the case of no residence is a last resort, an ultimate default position, which should not be held to apply except in extreme and clear circumstances, which it is not necessary to define or even illustrate for the purposes of this appeal’). 117(3) In this section ‘the clinical commissioning group or Local Health Board’ means the clinical commissioning group or Local Health Board, and ‘the local social services authority’ means the local social services authority
(a)if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;(b)if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or(c)in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
(4)Where there is a dispute about where a person was ordinarily resident for the purposes of subsection (3) above–
(a)if the dispute is between local social services authorities in England, section 40 of the Care Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of Part 1 of that Act;(b)if the dispute is between local social services authorities in Wales, the dispute is to be determined by the Welsh Ministers;(c)if the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.
(5)The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them they agree is to do so.
19.127There is guidance at Chapters 19–21 and Annex H of the
Care and Support Statutory Guidance, specifically at paragraphs 19.42–19.48 in relation to after-care (see ‘Ordinary residence’, chapter 12 above). There is also NHS guidance:
Who Pays: Determining responsibility for payments to providers (August 2013).
2www.england.nhs.uk/wp-content/uploads/2014/05/who-pays.pdf.The case-law in this area is to be found above in chapter 12 at paras
12.53–
12.56.
19.127.1A point to watch out for is that the deeming provisions at section 39 of the Care Act 2014 (see chapter 12) apply only for the purposes of the Care Act 2014 and not for the purposes of section 117 of the Mental Health Act 1983. Accordingly:
•a patient who was ordinarily resident in local authority A immediately before his detention will be the responsibility of local authority A on his discharge whether or not he returns to live in the area of local authority A and he will remain the responsibility of local authority A no matter how many other local authority areas the patient might subsequently move to live in, unless he is detained once more (see paragraph 19.44 of the Care and Support Statutory Guidance);
•if a patient in receipt of after-care services is detained once more, the local authority responsible for his after-care services will be the local authority in whose area he was ordinarily resident immediately prior to his detention and not (where different) the local authority providing him with after-care services even where those after-care services include a placement in accommodation in the area of local authority B (see paragraph 19.47 of the Care and Support Statutory Guidance);
•if a patient is provided with accommodation as part of his after-care services, then section 39(4) of the Care Act 2014 will apply and he will be deemed to be ordinarily resident in the area of the local authority providing him with after-care services for the purposes of the Care Act 2014 but not for the purposes of section 117 of the Mental Health Act 1983 (see paragraphs 19.46 and 19.47 of the Care and Support Statutory Guidance).