County council in legal action against Health Secretary over ‘ordinary residence’ determination

Worcestershire County Council has started legal action against the Secretary of State for Health and Social Care in a dispute over which council should provide after-care services under the Mental Health Act 1983 to someone who has been detained on two occasions.

Local Government Lawyer understands that other local authorities are considering joining the proceedings following a series of determinations by the Secretary of State. These determinations were published by the Department for Health and Social Care this week.

A Worcestershire spokesperson said: “Worcestershire County Council can confirm that it has issued a claim challenging an ordinary residence determination made by the Secretary of State for Health and Social Care in respect of local authority responsibility for the provision of after-care services pursuant to section 117 of the Mental Health Act 1983.

“The determination creates a level of uncertainty as to the legal position in identifying which local authority is responsible for meeting section 117 after-care duties and is contrary to the Secretary of State’s own statutory guidance on this issue.

“We have ensured that the care provided has not been negatively impacted.”

Worcestershire has not named the person concerned or given further details of their situation.

Local Government Lawyer understands, however, that the relevant determination by the Secretary of State is this one (Ordinary residence 7: 2020). The document states:

1) The Secretary of State has been asked by Council A to carry out a review, under section 40(2) of the Care Act 2014 (“the CA 2014”) of his determination (“the Determination”) of ordinary residence of X (“X”). The Determination was made following a referral to the Secretary of State by Council B of its dispute with Council A, pursuant to section 117(4) of the Mental Health Act 1983 (“the MHA 1983”) and section 40 of the CA 2014. X is entitled to after-care services under section 117 because she was detained on 2 occasions (“the First Period” and “the Second Period”) under section 3 MHA 1983.

2) In the Determination the Secretary of State concluded that X was ordinarily resident in Council A’s area at the relevant time for the purposes of determining responsibility for the provision of after-care under section 117 of the MHA 1983.

3) I have concluded that this is incorrect, and that Council B has, or retains, the responsibility for the provision of after-care for X. I have reached this conclusion for a number of free-standing and independent reasons:

(a) That, 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 as at YY/YY/2015 (immediately before the Second Period of detention), on the basis that Council B had itself placed her in Council A pursuant to its obligations to provide her with after-care under section 117 of the MHA 1983 following the First Period. Though physically present and resident in Council A 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.

(b) In the alternative, I would conclude that 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 after-care services continuously for any period in which they are not detained, then 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 which I have to determine is as to X’s ordinary residence immediately prior to the First Period of detention, at which time it is clear (and there is no dispute) that she was ordinarily resident in Council B.

(c) In the further alternative, even if either of the above conclusions is incorrect, I do not accept that Council B’s duties under section 117 MHA 1983 arising from the First Period of detention lapsed by operation of law when she was detained for the Second Period, and there is no evidence that Council B ever took a decision that she was no longer in need of such services as required by section 117(2) of the MHA 1983. In those circumstances I would conclude that Council B’s duties under section 117 arising from the First Period of detention continued. On that basis, no question as to X’s ordinary residence arises but Council B retains responsibility for X under section 117 of the MHA 1983.

An application has reportedly been made for an expedited hearing.

A Department of Health and Social Care spokesperson said: “We’re unable to comment on potential or ongoing legal action against the department.”

Departmental statutory guidance states ‘ordinary residence’ status is crucial in deciding which local authority is required to meet the care and support needs of adults and their carers and that whether a person is ‘ordinarily resident’ in the area of the local authority “is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support”.

Mark Smulian