Ordinary Residence s117 ~ all change in England (and Wales?).
The English 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).
If the Department is correct, then this will also have major implications for councils. The details of the announcement are explained in a briefing on the English law section of this website and can be accessed by clicking here. This include details of a legal challenge by Worcestershire County Council and a recent ‘Secretary of State’s ordinary residence decision’ (2020; 7) that has precipitated this change of mind
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 English 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):
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 the ordinarily resident in (and the responsibility of) local authority (A).
The Welsh Government guidance in the Part 11 Code p.32, in large measure follows the (now discarded) English guidance. It states that under s117 local authorities and LHBs:
The duty on local authorities to commission or provide mental health aftercare rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the 1983 Act, even if the person becomes resident in another area where they are detained, or on leaving hospital. The responsible local authority may change, if the person is ordinarily resident in another area immediately before a subsequent period of detention which would require section 117 aftercare services.
Clearly this is going to be a major challenge for local authorities in Wales. Until the law is clarified by the pending legal proceedings, there is going to be a period of uncertainty characterised by claims and counterclaims (including for funding repayments). Since this looks to be a case that may go all the way (ie to the Supreme Court) this suggests that this issue is not going to be resolved any time soon.
Photograph of ‘Coeden-Padarn’ by Richard Jones -@lluniaurich