Let’s go halves: Splitting the cost of s.117…

S.117 of the Mental Health Act 1983 (the ‘MHA’) imposes a joint duty on clinical commissioning groups (“CCGs”)[1] and local authorities (“LAs”) to provide after-care services to patients who have been detained under s.3 MHA once they are no longer detained and have been discharged from hospital.

After-care services are services which meet need(s) related to the person’s mental disorder and reduce the risk of their mental condition deteriorating. The range of services which can be provided is broad, including healthcare, social care and supported accommodation. Where an individual is eligible for support under s.117 MHA, services will almost always be supplied under that provision and not under NHS Continuing Healthcare (‘CHC’) or any other power (e.g. the Care Act 2014).

The s.117 MHA duty to provide services is formally triggered at the moment of discharge, albeit responsible authorities have a duty to engage in advance after-care plan making, and lasts until both the relevant CCG and LA are satisfied that services are no longer needed. The s.117 MHA duty is enforceable by a particular patient against either and/or both the CCG and the LA.

The MHA does not apportion responsibility for funding after-care services between CCGs and LAs. For example, there is no statutory division which states that CCGs pay for healthcare elements and LAs pay for social care elements. Rather, CCGs and LAs are encouraged (via the National Framework for CHC and NHS-funded Nursing Care) to have funding apportionment agreements in place. These agreements can be general or patient specific or can provide for costs to be funded from pooled budgets. Once agreement is reached, LAs and CCGs are under a public law duty to give it effect and can take enforcement action in the event of any breach.

However, situations may arise where a patient’s case is not covered by any pre-existing agreement and there can be a dispute as to how funding should be split. In such circumstances, each body has a full and enforceable liability to the patient to ensure their assessed after-care needs are met and may be forced to meet the full costs of a patient’s after-care package to avoid legal action for non-provision. As the MHA does not include a mechanism for resolving such disputes, what steps can be taken by a CCG or LA in these cases?

In the absence of a funding agreement, liability for the total cost of an after-care package should mirror the joint nature of the s.117 MHA duty; hence, it should be divided equally between the LA and the CCG. In that case, if either pays in excess of 50% of the total cost, the party that overpays may be able to recover any overpayment via a claim in restitution / unjust enrichment (i.e. a claim for the restoration to the claimant of a benefit which the defendant has obtained at the claimant’s expense and which it would be unjust for the defendant to retain).

It is a well-established principle of restitution that where Party A pays money to discharge a liability which is jointly owed to Party C by Party A and Party B, Party A can seek to recover anything more than its 50% contribution towards that sum from Party B. While it did not deal specifically with s.117 MHA after-care services, Surrey CC v NHS Lincolnshire CCG [2020] EWHC 3550 (QB) established that an LA can bring a claim in restitution against a CCG to recover costs incurred by the LA as a result of an unlawful failure by a CCG to provide services to an eligible individual.

Although resolution of any funding dispute will inevitably be fact-specific, adopting the default 50/50 contribution position and highlighting the possibility of a restitution claim should help achieve a speedier outcome in the best interests of the public bodies and the patient concerned.

Katharine Elliot is a barrister at Landmark Chambers.

[1] To be replaced by Integrated Care Boards following the coming into force in full of the Health and Care Act 2022.