Jan 2022 - Court of Appeal Decision on Duty to Provide Aftercare Services

The primary issue was where the service user was ordinarily resident immediately before being detained for the second time, for the purposes of aftercare funding.

The issue has arisen because the determination of which authority provides aftercare services up to April 2015 took account of residence and a considerable body of case law had grown up around the meaning of that term. The Care Act 2014 replaced residence with the term ordinary residence for deciding liability to provide aftercare which was fixed at the point immediately before a person is detained.

It was accepted that the service user was ordinarily resident in Worcestershire prior to their first detention, however the High Court concluded that the duty to fund aftercare services moved to Swindon after their release from the second period of detention because that was where they were living immediately before they were detained.

 

The Secretary of State contended on appeal to the Court of Appeal that Worcestershire should remain liable as a proper interpretation of ordinarily resident supported the case that Worcestershire remained liable for the care costs as it had owed the original duty to pay them and could not seek to export that liability to another local authority by moving the service user to their area. They also claimed that liability remained with Worcestershire until they made a valid decision to bring their section 117 duty (provision and funding of aftercare services) to an end.

The court allowed the appeal on the basis that the duty to provide aftercare services remains with the original local authority (Worcestershire) until a decision is communicated that the person concerned is no longer in need of aftercare services.

The judges made clear that in circumstances like these, where a vulnerable service user is detained, everyone must be trying to work to a plan which sees their release from detention as soon as possible. There would be extensive planning by the responsible authority which, in this case, was Worcestershire. It would be curious to find that, at the very moment those plans come to fruition, and the service user is released, Worcestershire suddenly became irrelevant, and a new duty was owed by a new local authority. That would not make for continuity of care and would be very unsatisfactory for the service user.

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