Section 117 Mental Health Act (MHA) 1983 and Ordinary Residence: the Supreme Court decides
So, what was that all about?
For some strange reason in 2020 the Department of Health and Social Care changed its mind concerning the determination of a person’s ordinary residence for the purposes of section 117 Mental Health Act 1983. It could have inserted a small amendment to a convenient Health or Social Care Bill – but ‘no’ – it simply issued new guidance. It didn’t take a genius to see that this was ‘bound to provoke anger among many local authorities’.
Previous briefings[1] have pointed to the absurdity of this behaviour.
As was inevitable, court proceedings ensued. The High Court[2] disagreed with the Department of Health and Social Care, the Court of Appeal[3] unanimously disagreed with the High Court and the Supreme Court[4] has now unanimously disagreed with the Court of Appeal.
Local authorities have endured over three years of unnecessary uncertainty – while simultaneously providing employment for 8 senior judges, 12 barristers and heaven knows how many solicitors and paralegals.
To explain the decision as simply as one can, it now means that the law is what it was understood to be, before the Department of Health and Social Care had its 2020 wobble. That if a person, ordinary resident in (say) Worcestershire, is detained for treatment (for example under section 3 MHA 1983), then, when they are discharged from hospital, Worcestershire will be the responsible local authority for their section 117 aftercare services. This will be so, even if that person then moves to (say) Swindon. However, if that person, while living in Swindon, is re-sectioned for treatment, then (all things being equal) on discharge, Swindon will become the responsible local authority for their section 117 aftercare services.
The irony (or tragedy perhaps) is that the Government is proposing an amendment to the MHA 1983 of the kind that it should have proposed / enacted in 2020. Assuming that the Mental Health Bill will one day become law, it will (via clause 39) bring the section 117 ordinary residence rule (for local authorities) into line with the Care Act 2014 rule. Until this happens, let’s hope that neither the Department of Health and Social Care nor the Courts feel the urge to tinker with the complexities of local authority ordinary residence rules: rules with Elizabethan Poor Law origins – rules that are best determined by Parliament.
[1] See Ordinary Residence s117 ~ all change (26 June 2020), Section 117 & Ordinary Residence ~ All change yet again 22 March 2021 and What a mess – s117 ordinary residence (again) 2 January 2022.
[2] R (Worcestershire CC) v Department of Health and Social Care and Swindon Borough Council [2021] EWHC 682 (Admin).
[3] R (Worcestershire County Council) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957.
[4] R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.
Posted 15 August 2023