Ordinary residence - Worcestershire revisited?

Those of you with long memories will recall that the Secretary of State, in R (Worcestershire) v SSHSC [2023] UKSC 31, sought to argue that, in the context of section 117 of the Mental Health Act 1983 (“MHA 1983”), the words ‘ordinarily resident’ bore a special meaning where, if the accommodation in which the person concerned is living is provided by a local authority for the purpose of performing its statutory duty under section 117 MHA 1983, then residence in that place should be disregarded in determining where the person is “ordinarily resident” for the purpose of section 117(3) MHA. 

This was based on applying the reasoning of Supreme Court’s decision in R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137 such that “ordinary residence” for the purpose of care statutes such as the National Assistance Act 1948, the Children Act 1989 (“CA 1989”), the Care Act 2014 (“CA 2014”) and the MHA 1983 depends on fiscal and administrative considerations and that under all of those statutes responsibility remains with the local authority which arranges accommodation for the person concerned for the purpose of fulfilling its statutory duties.

This attempt to extend the Cornwall decision to section 117 MHA 1983 was rejected by their Lordships for four reasons. First, section 117(3) MHA 1983 did not manifest any intention that the term “ordinarily resident” should be given anything other than its usual meaning. Secondly, section 117 MHA 1983 was independent from other care legislation. Thirdly, the amendments made to section 117(3) MHA 1983 by the CA 2014 did no more than replace the concept of residence with that of ordinary residence. Lastly, section 39(4) of the CA 2014 showed explicit recognition by Parliament that the area in which a person is ordinarily resident for the purposes of section 117 MHA 1983 does not always coincide with the area in which he or she is treated as ordinarily resident for the purposes of the CA 2014.

Their Lordships concluded that, ‘in circumstances where Parliament has deliberately chosen not to apply a deeming (or equivalent) provision to the determination of ordinary residence under section 117 of the 1983 Act, the words “is ordinarily resident” must be given their usual meaning…’

Parliament has now chosen to apply deeming provisions to the determination of ordinary residence under s. 117 MHA 1983. This has been done pursuant to section 46 of the Mental Health Act 2025 which amends section 117 MHA 1983 by inserting a new subsection 3A. 

The provisions are not yet in force and no date has been given for their commencement.

There are two main new deeming provisions. The first, at section 3A(a)(i) in relation to children, applies section 105(6) of CA 1989 to the determination of ordinary residence in section 117(3) MHA 1983. 

Section 105(6) CA 1989 contains a deeming provision where, when determining a child’s ordinary residence, one disregards any period in which he lives in a school or other institution, in accordance with the requirements of a supervision order or a youth rehabilitation order or while he is being provided with accommodation by or on behalf of a local authority. 

Additionally, the new section 3A(a)(ii) extends section 105(6) CA 1989 to include, for the purposes only of determining ordinary residence under section 117(3) MHA 1983, the disregard of any period where the child is being provided with accommodation under section 117 MHA 1983 or accommodation under the National Health Service Act 2006.

This will mean, for example, that if a child, is living with carers in private rented accommodation in local authority (“LA”) A and then is detained under section 3 MHA 1983, LA A will be responsible as one applies the ordinary meaning of ordinary residence. 

The child is then discharged to section 117 MHA 1983 accommodation in LA B, with LA A funding that accommodation.  He deteriorates and is detained for a second time. Under the new provisions, LA A would still be responsible because of the new deeming provision at section 3A(a) MHA 1983.

Currently, applying Worcestershire, LA B would be responsible as one looks at the period immediately before the second detention and uses the ordinary meaning of ordinary residence. 

The second deeming provision, at section 3A(b), in relation to adults, applies section 39(1) – (6) and paragraphs 1(1), 2(1) & (2), and 8 of Schedule 1 of the CA 2014 to the determination of ordinary residence in section 117(3) MHA 1983.[1]

Section 39(1)-(6) CA 2014 contains three deeming provisions. The first, at section 39(1) CA 2014 is that where a person is living in specified accommodation (care home, supported living, shared lives) they are deemed to be ordinarily resident in the area they were ordinarily resident in immediately before they went into that accommodation.

The second, at section 39(4) CA 2014, is where a person is being provided with section 117 accommodation, they are deemed to be ordinarily resident in the area of the local authority that is responsible for their after-care services.

The third, at section 39(5) CA 2014, is that where a person is provided with NHS accommodation then they are deemed to be ordinarily resident in the area they were ordinarily residence in immediately before the NHS accommodation was provided.

Paragraphs 1(1), 2(1) & (2), and 8 of Schedule 1 CA 2014 relate to the cross-border provisions such that if a person is provided with residential accommodation in Wales by an English local authority that English local authority will retain responsibility.

This will mean, for example, that if P is placed in supported living in LA B by LA A and then is detained under section 3 MHA 1983, LA A will be the responsible section 117 authority due to the application of section 39(1) CA 2014.

Currently LA B would have been responsible applying the ordinary meaning of ordinary residence.

If LA A then places P in section 117 accommodation in LA C and P then deteriorates and is detained for a second time LA A remains responsible due to the application of section 39(4) CA 2014.   

Currently LA C would be responsible as, applying Worcestershire, one looks at the period immediately before the second detention and uses the ordinary meaning of ordinary residence.

It is clear that the Secretary of State will now achieve, by way of explicit amendment to the MHA 1983, what he sought to achieve by way of interpretation relying on Cornwall.

Peggy Etiebet and Lee Parkhill are barristers at Cornerstone Barristers.

^[1] Section 3A(b) will also apply section 194(1) to (3) of the Social Services and Well-being (Wales) Act 2014, which make similar provision, in respect of Wales, as the Care Act 2014, s. 39(1)-(3) make in respect of England