Ordinary residence: section 117 approach remains unsettled despite government court win
The way ordinary residence is determined for mental health aftercare remains unsettled, despite the government winning a court ruling relating to its radical new approach to the issue.
Last month, the Court of Appeal partially accepted the new policy, under which responsibility for aftercare for people detained multiple times under the Mental Health Act remains with the council where the person lived immediately before their first detention.
However, it rejected a key aspect of the government’s approach, and Worcestershire council, who the court ruled against in last month’s judgment, is considering appealing to the Supreme Court.
As a result, the Department of Health and Social Care (DHSC) will continue not to make any determinations on disputes between councils over responsibility for aftercare that are similar to the Worcestershire case until legal proceedings definitively conclude.
Meanwhile, the government is planning to use its reform of the Mental Health Act 1983 to write its approach into law, with a bill to do so expected this year, though it is unclear when this will be implemented.
Learn about the government’s new approach
Community Care Inform Adults users can benefit from a detailed guide to the government’s new approach to determining ordinary residence in section 117 aftercare cases, by legal editor Tim Spencer-Lane. This will be updated to take account of all future developments.
High Court rules against government…
At the High Court last year, Worcestershire county council succesfully challenged the DHSC for determining that it – and not Swindon council – was responsible for the aftercare of a woman, JG, following her discharge from a second period of detention under the Mental Health Act.
Worcestershire had placed her in a care home in Swindon in 2014 after her first detention and, following a move to a second care home, she was detained again, and discharged for aftercare, in 2015. In siding with Worcestershire, the High Court rejected all three elements of the government’s new approach:
- That the Care Act’s deeming rules – under which a person’s ordinary residence remains with an authority that places them out of area – applied to section 117 cases, and so responsibility for JG remained with Worcestershire. The High Court ruled that this was not applicable to the Mental Health Act, in which there are no deeming rules.
- That the reference in section 117(3) to responsibility for a person’s aftercare lying with the area where they were ordinarily resident “immediately before being detained” related to the time prior to the first of multiple detentions. The High Court found that it referred to the area where the person was ordinarily resident before the particular detention in question – Swindon in JG’s case.
- That responsibility for aftercare did not end when a person was detained again but, as per section 117(2), when the relevant council and CCG decided that the person no longer needed it. The High Court rejected this for similar reasons to point 2: that, under section 117(3), responsibility lay with the council and CCG where the person was ordinarily resident immediately before the detention in question.
…then Court of Appeal partially accepts new approach
The Court of Appeal overturned the lower court’s decision that Swindon was responsible for her aftercare, on the third ground. Giving the lead judgment, Lord Justice Coulson said that section 117(2) “could not be clearer” in saying that a council and CCG’s section 117 duty continued “until such time” as they were satisfied that the person no longer needed aftercare.
The second ground was not raised in the appeal. However, on the first ground, the Court of Appeal rejected the government’s approach, citing the binding precedent of the 2011 Hertfordshire case, which found that the deeming rules did not apply in section 117 cases.
However, the government has indicated that it intends to change the law through its reform of the Mental Health Act to apply the deeming rules to section 117 cases, as recommended by the Independent Review of the Mental Health Act 1983 in its 2018 final report.
MHA reform plans
Responding to the consultation on its 2021 white paper on MHA reform, the government said: [This] year’s High Court judgment in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council (‘the Worcestershire case’), has in the Government’s view, highlighted the need for greater clarity within the Act about how the concept of Ordinary Residence should be interpreted in practice.
“We have explored initial proposals to make it more straightforward in some cases to establish which local area is responsible for the aftercare of a person, particularly in more complicated personal histories which have included placements out of area. Initial feedback from stakeholders we have engaged with has been positive. We will continue to develop proposals in close liaison with stakeholders in local Government and [NHS England and NHS Improvement].”
The DHSC declined to comment in relation to the Court of Appeal judgment.
Paula Furnival, director of people at Worcestershire County Council, said: “The judgment gives welcome clarification on how ordinary residence, under section 117, operates so we are pleased with the ruling from the court on that aspect. The council is disappointed that the court found against it on the second ground of appeal and we are currently considering the wider implications of this decision and our options going forward.”