Health and social care secretary Matt Hancock has overhauled the government’s previous approach to determining ordinary residence in Mental Health Act 1983 (MHA) aftercare.
In five determinations of ordinary residence disputes between councils – four of which reversed previous government decisions on the same cases – the secretary of state ruled the ordinary residence of a person receiving aftercare did not change, even if they were detained under the MHA on multiple occasions from different areas.
The previous policy – set out in the Care Act statutory guidance – was that a person placed for aftercare by a local authority in a different area would be ordinarily resident in the second area for the purposes of aftercare if they were detained for treatment a subsequent time.
In a note published last week, the Department of Health and Social Care said the Care Act guidance position no longer represented the secretary of state’s view, and that the guidance would be updated pending the outcome of a legal challenge against once of the ordinary residence decisions published last week.
Worcestershire council has lodged the challenge, after Hancock’s determination found that it was responsible for the aftercare of a woman after she was detained for treatment under the MHA while resident in a care home in Swindon, where she had been placed by Worcestershire for aftercare.
The DHSC said that it would also defer any determinations on ordinary residence disputes between councils on this particular issue until the outcome of the case is known.
Under section 117 of the MHA, a person detained for treatment under the MHA is entitled to aftercare, commissioned jointly by a local authority and relevant NHS commissioning body, following discharge, until the two bodies are satisfied the person no longer needs it.
Under section 117(3), the relevant local authority is determined by the place where the person was ordinarily resident immediately before their detention for treatment. As confirmed by the Care Act guidance this remains the case even if they are discharged for aftercare to a different area, and even if they moved to a third area.
However, the Care Act guidance then goes on to say that if the person is detained again while receiving aftercare in a second or third area, it would be the local authority for this area that would take over responsibility for their aftercare.
It is this interpretation that has been overturned by Hancock’s rulings, on three grounds.
The first was the Supreme Court’s 2015 judgment in R (on the application of Cornwall Council) v Secretary of State for Health, which found that a man who lacked capacity to decide where he lived was ordinarily resident for the purposes of adult social care in Wiltshire despite having no links current with the area.
This was because it was Wiltshire council who had arranged a foster placement for him while a child, in South Gloucestershire, meaning it retained ordinary residence for the purposes of the Children Act 1989, and that this responsibility continued when he became an adult and fell under the jurisdiction of the then National Assistance Act 1948.
It was irrelevant for ordinary residence purposes that his family was then resident in Cornwall – whom the then health secretary had previously deemed to be responsible for his care, in a determination in 2012.
In the latest set of ordinary residence determinations, Hancock ruled that the Cornwall judgment was applicable to section 117 aftercare, quoting a key paragraph in the Supreme Court ruling which said that it would be “highly undesirable” and contrary to the intent of legislation for an authority to be able to transfer ordinary residence to another by placing a person in the second authority’s area.
Despite the MHA, unlike the Care Act 2014, containing no provision for a person’s ordinary residence to be “deemed” in the place where they lived immediately before they were placed in out-of-area accommodation, section 117 has a similar effect by fixing ordinary residence in the area the person was in immediately before detention.
So, in the case of a person discharged to a different area for aftercare, they would retain their ordinary residence up to the point of any subsequent detention for treatment, meaning the original authority would retain responsibility for their aftercare thereafter.
Meaning of section 117
The second ground was that the reference to aftercare responsibility being determined by where the person was ordinarily resident “immediately before being detained” in section 117(3) should mean where they were ordinarily resident before their first detention where the person has been detained multiple times, so long as they were continuously provided with aftercare in the meantime.
While the wording in section 117(3) was not conclusive and did not spell out this approach, it does not specify the opposite – that ordinary residence should be determined by where the person was immediately before their most recent detention.
Given this ambiguity, the secretary of state said it was legitimate to look at wider policy considerations, in this case the point from Cornwall about the undesirability of ordinary residence shifting every time a person moved area.
Aftercare responsibility does not end on re-detention
The third ground was that an authority’s responsibility for aftercare did not end necessarily on the person being detained a subsequent time.
Under section 117(2) of the MHA, entitlement for aftercare ends when the relevant council and NHS commissioning body decides that the person no longer needs it – not on their subsequent detention.
It may be the case that the duty ends on a person’s subsequent detention; if, for example, the council and NHS body considers that they are likely to be detained for a long period of time, then it would be appropriate to conclude that they no longer needed aftercare because their needs would be met in hospital for the foreseeable future.
However, any such decision would need to be made on a case-by-case basis and was not a matter of law. Where it was anticipated that detention for treatment would be for a short time, “it may well be difficult to conclude that the person is not in need of services under section 117”, found Hancock’s determination in the Worcestershire case.