Ordinary Residence – Where are we now?

Ordinary Residence – Where are we now?

R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care (Respondent)

Yesterday, the Supreme Court considered the appeal and cross appeal in the above case which related to which local authority had a duty to provide aftercare to P when they were detained under section 3 of the Mental Health Act 1983 again in another authority’s area (in this case Swindon) whilst still receiving s117 aftercare from another local authority (in this case Worcestershire County Council).

It was the position of Worcestershire Council that the s117 duty for Worcestershire to provide aftercare ended once it was imposed upon Swindon Council. It was noted that Swindon ICB have accepted this position throughout. Here are a few of the arguments raised.

Council for Worcestershire CC confirmed that there were two competing duties in this case; the duty to provide s117 aftercare when P was first detained in Worcestershire and the duty to provide s117 aftercare when P was detained in Swindon. Counsel accepted that it was necessary to identify how this can be resolved as having two competing duties is impractical. It was explained that s117 has two stages. (1) P must be detained and (2) P must cease to be detained and leave hospital. This triggers s117(2) aftercare.

When an individual needs a s2 or s3 Mental Health Act admission, it is AMHP from the Local Authority where the individual is currently residing who will complete the assessment. At this stage, there is no involvement from any previous local authority providing s117 care – in this case Worcestershire CC. They submitted that s117 is newly engaged each time someone is detained under s3 and ceased to be detained and leave hospital. The main reasons provided were:

  1. S117(1) is in the present tense – language suggests it is triggered when the pre-conditions are met.
  2. It should be triggered each time detained as there is nothing in s117 about a single detention.

The Secretary of State’s position is that the 2nd detention does not trigger a duty under s117 as the 1st duty has not ended in the prescribed way as set out in s117(1)(2) and therefore there is already an aftercare duty in place. Worcestershire CC disagreed that this was the only way to end a s117 duty as there are other ways s117 duty such as death. A Supreme Court Judge also suggested deportation and prison sentence as other ways a s117 duty could end. Counsel for Worcestershire CC stated that the statute doesn’t say 1st time someone is detained and that the SoS was trying to rewrite s117. No where in s117 does it say once only.

The Lords asked about continuity of care. Counsel explained that there was no evidence it has been an issue and quoted evidence from Professor Clements. The Secretary of States guidance has used Worcestershire’s interpretation for 10 years and there is no noted difference. Counsel was not suggesting that the guidance provides the Lords with advice as how to interpret the law, however it does show that there have not been issues while this has been in place and it has been accepted by Local Authorities for a number of years.

The reality on the ground is that no matter who is funding, it is the local authority in P’s location that will be providing the care. The evidence from MIND, it was submitted, was broadly supportive of the view that no issues arose from continuity of care.  The Judge said surely the previous authority would have all the records but Counsel submitted that these could easily be transferred. He explained that it was easier for second authority to be involved as they would be closer making it easier to liaise, plan, and understand local provisions. The Judge inferred therefore that this was a financial issue not a practical one.

Counsel for the Secretary of State put forward the view that there were 3 pre-conditions to s117(1), (1) being detained, (2) ceasing to be detained and (3) leaving hospital. He explained, such as in this case, that someone can be taken off section but remain in hospital voluntarily for some time and the s117 duty will not be triggered until they leave.

Counsel stated that the language in s117(2) is very clear and provides that the duty is terminated when it is mutually agreed by the Local Authority and ICB that there is no longer a need for services. Counsel questioned Worcestershire’s case regarding wording/language as an individual can’t be detained and ceased to be detained at the same time but both use the present tense in s117(1). He also turned to s51 of the Amendment Act which says “having been detained” – clearly showing past tense.

In respect of the above policy point, the Secretary of State’s view was continuity of care was important. There were also concerns raised the it would not be right for Local Authority A not meet P’s needs leading to them being sectioned and then to stop owing a duty and pass the buck to another authority.

Cross appeal

The Secretary of State introduced a cross appeal in relation to deeming provisions and ordinary residence. Currently, there are no deeming provisions in the Mental Health Act 1983 and the individual is treated as being ordinary resident as per the normal Shah rules. The Secretary ofSstate wished to introduce the deeming provisions as set out in the Cornwall Case, namely when Local Authority A moves P into specified accommodation in Local Authority B, P remains ordinarily resident in Local Authority A. This stops Local Authorities “dumping” service users into nearby counties to avoid funding. It should be noted that in this particular case, it was agreed that Worcestershire had not done this.

In respect of the above cross appeal, Counsel for Worcestershire CC explained to the Supreme Court that there are no deeming provisions in the Mental Health Act. When Cornwall was being considered, there were deeming provisions in both the relevant statutes, namely the Children Act and the National Assistance Act. He stated that Cornwall had taken “pixie steps” beyond the statute but the Secretary of State was trying to take “Goliath leaps”, writing in deeming provisions that just aren’t there. Counsel noted that s117 of the Mental Health Act 1983 has been amended countless times and a deeming provision has never been added. He noted that the Mental Health Bill, which is in very early stages, does include a deeming provision. He stated that Parliament haven’t added this previously and it is not for the Court to do so. 

Where we are now

Until Judgment is released later on in the year, the law remains that as decided by the Court of Appeal, namely, if P is detained under s3 in Local Authority B, but s117 duty owed by Local Authority (and ICB) A had not been formally terminated, the duty remains with Local Authority A.

If you would like advice regarding ordinary residence, please feel free to contact us at eh@butler-solicitors.co.uk.