Ordinary Residence determinations: most unlikely candidate for stirring you from lockdown torpor?

In a clutch of recent Ordinary Residence Determinations, the Secretary of State has managed to put the cat well and truly amongst the pigeons by resiling from the Government’s own statutory guidance on the issue of which local authority is responsible for commissioning section 117 aftercare services for those who have been detained sequentially under various sections of the Mental Health Act 1983.

Worcestershire County Council is already challenging the decision in its case (a review of the initial determination), and all new ordinary residence disputes which involve similar issues arising out of section 117(3) MHA 1983 will be stayed pending the outcome of that appeal.

In this case (OR determination 7), X was living in Council B’s area (Worcestershire) when she first became known to social services because of her physical and mental health conditions.  She was first detained under section 3 in 2014 and, on discharge, was funded with a package of aftercare commissioned by Council B which involved her being placed in residential accommodation in the area of Council A (Swindon), near to a family member.  In 2015, however, she was detained a second time under section 3.  She was later discharged from section but had still to leave hospital when the question arose of who would fund the second period of aftercare to which she would be entitled: Council A where she has been living before she was detained a second time or Council B who had placed her in Council A’s area after the first detention?  X lacked capacity to decide where she wished to live.

In seeking to identify the local authority responsible for commissioning section 117 aftercare, section 117(3) sets out a three strand test.

In summary:

(a)  if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;

(b)  if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or

(c)  in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.

The critical first enquiry therefore, is whether someone has an ‘ordinary residence’ and, if so, where that ordinary residence is.

On review, the Secretary of State overturned the initial determination and concluded that Council B was responsible for funding the local authority component of X’s aftercare once she left hospital on the second occasion. 

Three ‘independent and free-standing’ reasons were provided for this conclusion:

(1) Applying the approach of the Supreme Court in R (Cornwall CC) v SSH [2016] AC 137, X should be regarded as being ordinarily resident in the area of Council B in 2015 (immediately before the second period of detention), on the basis that Council B had placed X in Council A’s area pursuant to its obligations to provide her with aftercare following the first detention.  Though physically present and resident in Council A’s area at this date, she remained ordinarily resident in Council B “for fiscal and administrative purposes” in the sense discussed by Lord Carnwath in paragraph 60 of the Cornwall judgment.  This derives from the long-standing rule that a local authority cannot divest itself of responsibility by ‘exporting’ an individual to another authority’s area; responsibility remains with the ‘placing’ body.

(2) In the alternative, on the proper construction of section 117(3)(a), in a case where a person is detained on more than one occasion, and where they are provided with aftercare services continuously for any period in which they are not detained, the phrase “immediately before being detained” in section 117(3)(a) should be interpreted to mean “immediately before being first detained” rather than “immediately before being most recently detained”.  On this basis, the issue of ordinary residence to be determined was X’s ordinary residence immediately prior to the first period of detention, at which time it was clear (and there was no dispute) that she was ordinarily resident in Council B’s area.

(3) In the further alternative, if either of the above conclusions were incorrect, Council B’s duties under section 117, arising from the first period of detention, did not lapse by operation of law when she was detained for the second period.  [In other words, the second section 3 did not guillotine the section 117 aftercare].  Moreover, there was no evidence that Council B (together with the relevant CCG) ever decided that she was no longer in need of such services so as formally to end her entitlement.  Council B’s duties under section 117 arising from the first period of detention therefore continued in spite of the second detention.

Comment

This conclusion is bold on any front.  It is also, of course, at odds with paragraph 19.64 of the Care and Support Statutory Guidance, which states that “[I]f 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 aftercare when they are discharged from hospital”.  Although the determination (on basis 1) hinges on the fact that X did not become ordinarily resident in Council A’s area precisely because she was placed there by a public body [ie: the typical local authority ‘deeming’ rules applied], paragraph 19.67 is equally clear (as was case law preceding the Care Act 2014) that “deeming provisions do not apply to section 117…nor have they been incorporated into section 117”.  Yet all of this is of no consequence, it appears; the Statutory Guidance, the Secretary of State intoned, was simply wrong and would be amended!

It is clear from this case that the question of sequential detentions and periods of section 117 aftercare, and how to deal with these in a manner that is fair to both public bodies, who wish to avoid shouldering infinite historical liabilities, and to patients, by potentially discouraging out of area placements, have been vexing Social Care as much as Health, of late.  Both their solutions have raised eyebrows on publication.  But pending the outcome of Worcestershire’s challenge, is this bold stroke just part of the ‘new normal’ we keep hearing about?

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