‘Ordinary residence’ determination update


10th May 2021

What determines ordinary residence? We look at a recent case that gives an update on determination.

R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care v Swindon Borough Council [2021] EWHC 682 (Admin)

Back in June 2020 we reviewed Worcestershire County Council’s (“Worcestershire”) legal action against the Secretary of State for Health and Social Care (“SoS”) over a dispute as to which local authority should provide and pay for the after-care services following an individual’s discharge under the Mental Health Act 1983 (“MHA”).

The case has now been before the High Court, which delivered its judgment on 22 March 2021.

Background

The individual concerned, JG, was provided with after-care services pursuant to section 117 MHA between two periods of detention and during which she was in two different local authority areas. A dispute arose as to where JG was ordinarily resident immediately before she was detained under section 3 (MHA), and which authority should therefore pay for JG’s care from 9 August 2017, when she left hospital.

On 11 May 2017, the SoS determined that JG was ordinarily resident in Swindon Borough Council (“Swindon”), on the basis that this was where she was living immediately before the second period of detention. This was in accordance with the Department of Health and Social Care (DHSC) care and support statutory guidance.

Then on 28 February 2020, after Swindon sought a review of the decision, the SoS reversed its decision departing from the guidance, and determined that ‘JG was in fact ordinarily resident in Worcestershire for the relevant purposes.’

On 24 June 2020 the DHSC updated its guidance on ‘its position concerning the determination of disputes about the ordinary residence of patients who require after-care services under section 117 MHA.’ The guidance was to be applied pending the outcome of this case.

The claim for judicial review

The main issue for Mr Justice Linden to determine was ‘which local authority should pay for the after-care services which have been provided to JG following her discharge from her second period of detention on 12 November 2015 and, subsequently, from hospital?’

The SoS’s decision of 28 February 2020 was based on three propositions, ‘each of which is individually capable of sustaining that decision if it is correct.’ All three had to be wrong in law for the claim to succeed.

Decision

Mr Justice Linden rejected all three arguments and quashed the SoS’s decision of 28 February 2020 ‘on the grounds that it was erroneous in law’.

The first argument

The SoS submitted that following the Supreme Court’s approach in R (Cornwall CC) v Secretary of State for Health [2016] AC 137 (“Cornwall”), JG was ‘ordinarily resident in the area of Worcestershire as at 23 June 2015 (immediately before the second period of detention) on the basis that Worcestershire had placed her in Swindon pursuant to its obligations to provide her with after-care under section 117 MHA following the first period.’

Mr Justice Linden dismissed the SoS’s application of Cornwall. He explained that the interpretation of ordinary residence in Cornwall was only in relation to the National Assistance Act 1948 and the position ‘should not necessarily be “read across” to the 1983 Act, or vice versa.’ Section 117 MHA was materially different to the provision considered in Cornwall and therefore Cornwall’s approach had no application.

The second argument

The SoS argued that under section 117(3) MHA the words “immediately before being detained” ‘require a decision as to the ordinary residence of the person immediately before they were first detained, rather than immediately before their most recent period of detention.’ Therefore, JG was ordinarily resident in Worcestershire.

This was also rejected by the court. It was held that section 117 MHA contemplates that ‘on each occasion that a person is to cease to be detained … and is to leave hospital, the question as to appropriate after-care services will arise and will be addressed by whichever bodies owe the section 117(2) duty at that time.’ Therefore responsibility for after-care services ‘will fall on the area in which they were ordinarily resident when the decision to detain them was made i.e. immediately before that period of detention.’

The third argument

The SoS submitted that section 117(2) MHA provides that the duty to provide after-care arising from a period of detention continues until a decision is made by the CCG (or in Wales, the Local Health Board) and the local social services authority are satisfied that the person concerned is no longer in need of such services. As no such decision was made by Worcestershire and the duty arising out of JG being released from her first period of detention continued notwithstanding her second period of detention.

Again, this was rejected. It was held that where there is a second period of detention, ‘the question of after-care services will arise again when the person is due to be released and leave hospital.’ Following his reasoning in dismissing the second argument, Mr Justice Linden held that ‘the local services authority identified by section 117(3) (MHA) in respect of the second section 3 detention will owe the duty to provide after-care services arising out of that period of detention.’ Therefore, the section 117(1) duty will be triggered by a discharge and ‘there is therefore a need to identify which bodies owe the duty at this stage and on each occasion that this occurs.’

What's next?

The DHSC’s current guidance was to be applied pending the outcome of this case, we now wait to see how the guidance will be updated to reflect this decision.

If you have any questions regarding what determines ordinary residence, contact Joanne Thompson, Eve Piffaretti or Jodie Grove.

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