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Ordinary Residence s117 ~ all change

The Department of Health and Social Care has changed its mind concerning the determination of a person’s ordinary residence for the purposes of section 117 Mental Health Act 1983 – see its formal notice ‘Statutory guidance. DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case’ (24 June 2020).

In the short term this is bound to provoke anger among many local authorities.  In the medium term it is likely to produce a large number of ordinary residence disputes between local authorities (and claims for repayments).  In the longer term it appears to be a sensible acknowledgement that the system has not been operating well and maybe that the department has interpreted the law incorrectly.  In its defence – one has to say that the case law on ordinary residence has – especially ‘of late’- been remarkably unhelpful.  The case central to this ‘all change’ decsion – namely is R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46 was a reasonably extraordinary decision, and one which (with respect) I completely agree with the dissenting opinion of Lord Wilson: that – in essence – the majority decided to re-write the law – or as he put it (para 66): “I am not a legislator. Nor, with respect, are my colleagues.”

The fact that it has taken the Department of Health and Social Care five years to come to terms with this judgment is perhaps a criticism – but to be honest I still have great difficulty in understanding the legal logic for it – albeit, as Lord Wilson accepted, there were ‘strong reasons of public policy’ to support the decision (para 65).

The Department of Health and Social Care’s change of mind was signalled in a series of ordinary residence decisions it published this month – namely 4: 2020; 5: 2020; 6: 2020; 7: 2020; and 8: 2020.  Ordinary residence decision 2020: 7 is the subject of proceedings commenced by Worcestershire County Council.

The Department of Health and Social Care announcement states as follows:

As the Secretary of State has made clear in those determinations, the content of the care and support statutory guidance, particularly paragraphs 19.62 to 19.68, does not represent the Secretary of State’s current position and will be updated in due course. The current position is instead set out in the determinations referred to above.

Key, in this context, is the statement (in the June 2020 version of the Statutory Guidance) at para 19.64 that:

… if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.

 

Adopting the terminology in the above quote, in ordinary residence determination 7: 2020 (which is the subject of the High Court proceedings) the facts were, in essence:

a person ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, moved on discharge to local authority area (B). She was, however, subsequently detained in hospital for treatment again – but the Department of Health and Social Care determination held that after this she remained ordinarily resident in (and the responsibility of) local authority (A).

Fascinating.  This is a case that has – as they say – ‘got legs’.  Hopefully when it reaches the Supreme Court Lord Wilson (recently retired) will feel compelled to share his thoughts on this process with us all.