CoA overturns ruling in dispute between councils over after-care services

The Court of Appeal has overturned a High Court ruling in a dispute between two North East councils over which should be responsible for the provision of after-care services.

The case of R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232 centred on which local authority – Sunderland or South Tyneside – should provide after-care services under s. 117 of the Mental Health Act, on discharge, for a woman currently detained in hospital.

The woman, SF, had been placed by a third local authority (Leeds City Council) at a residential course at ESPA College in Sunderland in September 2009. She lived in a hall of residence called Westfield Hall.

It was common ground that at this stage SF was resident there, in the area for which Sunderland was the local social services authority.

On 3 October SF attempted to commit suicide. She was taken over the next few days to three different hospitals, ultimately ending up at South Tyneside District Hospital on 6 October 2009 as a voluntary patient. 

She was subsequently moved, with her consent, to Rose Lodge, an NHS Hospital in South Tyneside. This is a purpose-built NHS hospital designed for patients with learning difficulties and providing short-term treatment.

On 23 October 2009 ESPA College terminated her placement with the college and her licence to live in Westfield Hall. SF continued to be treated at Rose Lodge. She was subsequently detained on 24 December 2009 under s. 3 MHA for treatment.

The case provides clarification of the meaning of ‘resident’ for the purposes of s. 117 MHA. Counsel for Sunderland, Tony Harrop Griffiths and Steven Fuller of Field Court Chambers, argued that the judge at first instance had adopted the wrong test as to the meaning of residence, mistakenly having regard to the case law on “ordinary residence” for the purposes of other statutory provisions. 

Giving the Court of Appeal’s judgment, Lord Justice Lloyd said that if a person is living in a given place voluntarily it can be one’s place of residence even if there is or was not much of a range of choices as to where to live. Thus it was possible to be resident for these purposes in a hospital. 

The Court also held that the fact that SF had lost her accommodation in Sunderland was decisive in that SF could no longer be resident in Sunderland.

Lord Justice Lloyd said: “In my judgment Mr Harrop-Griffiths is justified in his argument that the judge was wrong to ignore the fact that, while SF was in Rose Lodge as a voluntary patient, she ceased to have any other place of residence available to her on 23 October 2009, so that there was from that date onwards no alternative to regarding her as resident in Rose Lodge, unless she was to be seen as not resident anywhere."

Commenting on the case, Harrop-Griffiths and Fuller said: “The case provides useful clarity as to the responsible local authority for s.117, although it is anticipated that when the current Draft Care and Support Bill becomes law, the position will change again, making the test one of ‘ordinary residence’ and providing for a mechanism for the Secretary of State to resolve disputes.”