Ordinary residence, s117 and the Worcestershire decision

This judgement was released on 22 March 2021, but it is unlikely to be the last word on this issue as an appeal is in the works. In the meantime, any cases raising similar issues will be stayed, and determination only given after the outcome of that appeal is known.

For those not familiar with the now long running spat between the Secretary of State and, well, the Secretary of State 6 years ago, the saga is thus:

The Care Act includes deeming provisions preventing local authorities from avoiding responsibility for a person by moving that person to another authorities area. We’ve discussed these before, and the public policy reasons for this are clear to see.

What the Care Act did not appear to do, is apply those deeming provisions in cases where someone is eligible for s117 aftercare. At the time, it was assumed this was by design and the statutory guidance stated that ordinary residence may change (only a ‘may’ never a ‘will’) in situations where a patient is eligible for s117 aftercare, moves out of area with aftercare services in place, but is then subsequently detained again under a relevant section of the Mental Health Act. This really only became an issue in a small number of cases where the person had become settled in a new area, with more links to that area than they retained with the initial home authority. Often such patients were living in the community in their new area, rather than being in ‘specified accommodation’ but not always.

In that small number of cases, the local authorities had to apply the Shah test to establish if the person had ‘voluntarily adopted’ their place of residence ‘for settled purposes’. Where the person lacked capacity to decide where to live, the element of voluntary adoption does not apply, as per the Cornwall judgment.

I admit that this is definitely not as straight forward as it would be if the deeming provisions applied. But lawyers across the country have been writing letters to each other for a few years now, and we do like showing off how clever we are.

Then came the Worcestershire determination by the Secretary of State. You see, for reasons driven by public policy in the most part, that determination found that the statutory guidance was incorrect and that ordinary residence should be decided as if the deeming provisions apply.

And I see the sense of it, many of us do. But unfortunately that isn’t actually what the legislation says.

Now rules of statutory interpretation are very complex and lawyers much cleverer than me argue about the meaning of particular phrases and the order within which phrases should be read all of the time. But the circumstances where words or phrases can be added to legislation are pretty limited.

So it isn’t surprising a judicial review case followed the determination, and it fell to the administrative court to decide whether the guidance initially given, or the determination, or neither, reflected the proper way that s117 Mental Health Act 1983 and s39 Care Act 2014 should be read.

The court concluded, over a judgement that is really very interesting for anyone with a niche curiosity about statutory interpretation but which is quite impenetrable to many who don’t have such an interest, that the deeming provisions did not apply. To me, that seemed somewhat unsurprising, but I’ve predicted these things wrongly before.

What is perhaps more interesting to me, is the discussion around whether the package of s117 aftercare ought to be ceased, through formal discharge, on the readmission to hospital, and whether failure to do so meant that the initial local authority’s duty to provide that care continued. If followed through, this could, theoretically have resulted in 2 concurrent aftercare packages running alongside each other. Which would be pretty ridiculous and the argument put forward was for the initial aftercare package to continue but with any necessary review for change in circumstances.

This argument was not accepted by the court. This may well be the focus of discussions during the appeal, though, as this seems to be more fertile ground than the argument that the statute should be interpreted to apply in a way that it does not explicitly state it applies.

Until the appeal outcome we are back at the position set out in the statutory guidance. Few authorities will be binding themselves to any care packages where this issue has arisen, but interim funding should continue to be in place, and aftercare packages and discharges should not be delayed pending the appeal decision.

Of course, there is always the possibility of an amendment being passed that clarifies this position anyway, if the court disagrees with the government.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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