The Court of Protection team at 39 Essex Chambers explain the background to the government's change of approach to ordinary residence for s.117 after-care.
On 24 June 2020, the Department of Health and Social Care set out its position when determining ordinary residence under s.117(3) of the Mental Health Act 1983. Although the ‘note’ is to be read alongside its statutory guidance, the two are entirely incompatible and the latter has yet to be amended to reflect the change of position.
According to the guidance at para 19.68, there is no deeming provision for s.117. So a person’s ordinary residence for MHA purposes is determined using the Shah test. As a result, the responsible after-care bodies can change if the person’s ordinary residence changes. However, para 19.68 no longer represents the Department’s position and will be updated once the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council (ie Ordinary Residence 7: 2020 determination) has been decided.
In the Worcestershire case, the patient was ordinarily resident in Council B before being first detained under the MHA. Following discharge, she was placed by Council B into Council A and subsequently re-detained under a s.117 qualifying provision. Under the statutory guidance, Council A would then be responsible for her after-care provision. However, the Secretary of State instead determined that such responsibility should stay with Council B for the following reasons:
1. The Supreme Court decision in R (Cornwall CC) v SSH  AC 137 should apply and so “for fiscal and administrative purposes” Council B should be responsible.
2. Alternatively, “immediately before being detained” in s.117(3)(a) should be interpreted as “immediately before being first detained”. And, at that time, she was ordinarily resident in Council B.
3. Alternatively, Council B’s s.117 duties did not lapse when she was detained for a second period.
Pending the resolution of the judicial review proceedings, there is significant legal uncertainty. Disputing local authorities will need to ensure that without prejudice agreements are reached to avoid prejudice to patients. And no doubt a rush of referrals seeking Secretary of State determinations will now come which, pending Worcestershire, will be stayed unless there are exceptional circumstances.
Interestingly, s.117 was an historical mistake made by the Conservative government when it accepted Labour’s opposition amendment to what ultimately became the MHA 1983, assuming (wrongly) that it merely duplicated the general NHS duties. One cannot help but wonder whether a second mistake of similar gravity has been made in the wording of the Care Act 2014 which amended s.117. Given the significance of the issue, it could be some time before the Worcestershire case is finally resolved and clarity restored. If only the case could also look at which CCG is responsible for s.117 as that is even more uncertain!
This article was written by the Court of Protection team at 39 Essex Chambers.