Section 117/restricted FTT -- no LA will take responsibility

Law and practice
1

I have a s37/41 client due a FTT imminently. His team believe he is ready for a conditional discharge however there are s117 issues - no one wishes to take responsibility in providing aftercare. He is placed in an out of borough placement and the LA where he was residing prior to admission believe they are not responsible. I am going by the authority of Supreme Court judgment in R (Worcestershire County Council) v SSHSC [2023] UKSC 31 and believe that the responsibility for providing aftercare under Section 117 falls to the council in whose area the client was ordinarily resident before their recall to hospital.
My questions are as follows:

  1. is my position correct
  2. can I use the tribunal to sort this issue out or is is best resolved pre- hearing ?
    Any other advice is most welcome that may assist in resolving this matter. Thank you wonderful friends.
2

We have had this issue, the Tribunal has issued Directions to the local authoritys to explain their position and why they are not responsible for aftercare and it has been sorted out that way. We have found the Tribunal very helpful in this respect.

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3

Hi

You can get directions from the tribunal that the identifed LA confirms whether it is responsible for S.117 and if not, who they consider is responsible and why. once you have that info, you can get agreement that they sort it out between them and one of them agrees to fund whilst they do that! That is important info for the tribunal. You can also ask for disclosure of the care act assessment and get facilities reports addressing discharge planning. We do it all the time.

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4

Thank you so much , that’s really helpful!

5

Thank you Benjamin, that’s really useful. I will do just that :smiley:

6

You’re welcome. Ben Conroy (who has also responded) does this with the Tribunals held for patients in our hospital so we know it works.

7

We discussed this in a previous topic at Conditional discharge recall and s117 responsibility and eventually came to the same conclusion as you about the meaning of the Supreme Court decision.

However, in the older case of R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712 the Court of Appeal decided that a residence condition meant the place of residence was not voluntary and so the patient was not “resident” there. Maybe the “recall” local authority will argue that the Supreme Court’s comments in Worcestershire about voluntariness were just obiter, and that the “original” local authority again has responsibility.

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Thank you Jonathan for raising this point, it’s very helpful to consider the implications of Wiltshire and voluntary residence . We definitely need legal clarity here!

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9

There are genuinely different legal opinions about this one. The Supreme Court seems to say that it’s being redetained for treatment which is the critical issue- where were they living immediately before their recall? However, I am not convinced that that’s what the SC meant, given they are recalled back on to the same section as previously.

Personally I am inclined to think that the SC comments were indeed obiter, given they weren’t asked to rule on this situation, and that the Wiltshire case remains good law. But that’s just an opinion.

Ultimately I think it will need to be specifically ruled on per curiam. In the meantime you can only get your own legal advice on the situation, and maybe ask the tribunal to push the parties to reach an agreement, as others have said.

10

Sorry, I meant the LA should get legal advice. In your situation you will orobably have to leave them to sort it out at rhe FTT. Until that happens it can absolutely delay discharge.