New case on the responsible commissioner for section 117 aftercare: and a reminder that this case will only be relevant for local authorities after the change in the regulations

On 22 May, the Court of Appeal gave judgment in the case of R(on the application of Wiltshire Council) v Hertfordshire County Council and SQ.

SQ was resident in Wiltshire until 1995 when he was made the subject of a hospital order with restrictions. He remained in hospital until 2009 when he was conditionally discharged. One of the conditions was that he would reside at a hostel in Hertfordshire that was staffed 24 hours a day.

In 2011 SQ was recalled to hospital. In 2014 he was conditionally discharged back to the hostel in Hertfordshire. At this point Wiltshire Council asked Hertfordshire County Council to take over funding for the section 117 aftercare. Hertfordshire County Council refused and Wiltshire Council sought judicial review of their decision.

In an interesting turn and perhaps as an indication that the Administrative Court is frustrated with proceedings being brought by public bodies against other public bodies the court refused the application on the papers and at the oral hearing. The matter was referred to the Court of Appeal which heard the case in full.

The Court of Appeal confirmed that the responsible local authority was Wiltshire. SQ did not establish residence in Hertfordshire between 2009 and 2011 because he was compelled to be there as a condition of his discharge and therefore he could not be seen to reside there voluntarily.

For CCGs (but not local authorities) the test for the responsible commissioner of aftercare services was simplified by regulation 14 National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 which provided that the responsible CCG will be the CCG responsible for the area the patient moves to on discharge.

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