Navigating "Ordinary Residence" in Mental Health Aftercare

One area that frequently generates questions, and indeed disputes, among health and social care professionals is the concept of "ordinary residence" – particularly when determining which local authority is financially responsible for an individual's aftercare under Section 117 of the Mental Health Act 1983. Recent case law has provided crucial clarity, which I believe is vital for all of us working in this field.

The Foundational Meaning of "Ordinary Residence"

At its heart, "ordinary residence" isn't a complex legal term, but rather should be given its natural and ordinary meaning. The landmark case of R v London Borough of Barnet Ex parte Shah 2 AC 309 established a clear definition: it refers to "a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration".

Let's break that down:

• "Voluntarily adopted": While it might seem counterintuitive for someone in managed care, this doesn't necessarily mean the individual chose the location themselves. For people receiving care, the location is generally considered "adopted on their behalf" by those responsible for their care and in their best interests.
• "Settled purposes": Crucially, this does not imply permanence or an indefinite stay. A purpose, even if for a limited period, can still be considered "settled". This is particularly relevant for rehabilitative placements. As Lord Scarman noted in Shah, common reasons for a regular abode include "health, family". Therefore, a stay for rehabilitation, even if planned for "up to 18 months" with an eventual goal of returning elsewhere, still forms part of the "regular order of life for the time being". The purpose of that placement, for the time being, is the provision of care and rehabilitation, which constitutes a settled purpose from the perspective of the authorities.

The Worcestershire Case: Clarifying Aftercare Responsibility

The Supreme Court judgment in R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council UKSC 31 directly applied these principles to Section 117 Mental Health Act 1983 aftercare disputes.

In essence, Worcestershire reaffirmed that when determining ordinary residence for Section 117 purposes, the focus is on where the person "actually lived" immediately before their detention. In the Worcestershire case, the individual (JG) had moved from Worcestershire to Swindon for care and was residing there when subsequently detained. The court concluded that Swindon was the place where JG was "ordinarily resident" because it was the location "adopted on behalf of JG" for "as settled a location as possible," and this was "part of the regular order of her life". If asked, JG or her daughter would have said she lived in Swindon.

Distinguishing Other Care Legislation: No "Deeming Provisions"

A key point of contention in these disputes often arises from the differences between various care statutes. Unlike the National Assistance Act 1948 or the Children Act 1989, the Mental Health Act 1983 (even after amendments by the Care Act 2014) lacks "deeming provisions".

These "deeming provisions" in other Acts allow a person's ordinary residence to remain with a placing authority even if they are physically living elsewhere. This was a central aspect of the Supreme Court's decision in R (Cornwall CC) v Secretary of State for Health UKSC 46. However, the Worcestershire court explicitly stated that the Cornwall reasoning, which involved "fiscal and administrative convenience", does not read across to the Mental Health Act 1983. The 1983 Act's Section 117 is considered a "free-standing provision". This means that ordinary residence under Section 117 is determined by where the person actually lives for a settled purpose, not where they were placed by a previous authority or where an authority might wish to retain fiscal responsibility by a "fiction".

The Impact of the Care Act 2014 Amendments

The Care Act 2014 made a seemingly significant amendment to Section 117(3) of the 1983 Act, changing the wording from "is resident" to "was ordinarily resident". Despite this, the Court of Appeal in Worcestershire affirmed that this change was of "minor significance".

The court noted that the term "ordinarily resident" was already considered in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council EWCA Civ 798 (which predated the 2014 amendments), where it was concluded there was "no perceptible difference" between "resident" and "ordinarily resident" in this context. Crucially, the addition of the word "ordinarily" does not automatically introduce the "deeming provisions" found in other statutes that allow for "fiscal and administrative responsibility" to trump actual residence. The absence of such deeming provisions in the 2014 Act's amendments to the 1983 Act was seen as a deliberate choice by Parliament.

The Department of Health and Social Care (DHSC) itself confirmed, following the Supreme Court's decision in Worcestershire, that it does not intend to amend its Care and Support statutory guidance (paragraphs 19.62 to 19.68) because these paragraphs already "reflect the current legal position". This reinforces that the core understanding of "ordinarily resident" in this context remains unchanged. Furthermore, the DHSC's position states that the Worcestershire decision does not affect the rules concerning Integrated Care Board (ICB) responsibilities for Section 117 aftercare, where the originating ICB retains responsibility during subsequent detentions, even if the patient moves.

The Continuing Duty for Section 117 Aftercare

Another critical aspect clarified in Worcestershire relates to the duration of the Section 117 duty. The court emphasized that the duty to provide aftercare services continues "until such time as the clinical commissioning group or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services".

This means:

• A formal decision by the relevant authorities is required to terminate the duty.
• The duty is not automatically extinguished simply because an individual is subsequently detained again under the Mental Health Act. In Worcestershire, it was found that the initial authority's duty continued even during a second period of detention, as no formal decision had been made to end it.
• The court also rejected the idea that a new duty from a different authority could "trump" an existing duty simply because the individual became ordinarily resident there before a subsequent detention. As long as the original duty subsists, there is only one duty.
• From a practical perspective, this approach supports continuity of care for vulnerable individuals. It avoids the "woefully uncertain" scenario of an automatic, uncommunicated change in responsibility, which would be highly unsatisfactory for patients and professionals alike.

Navigating Disputes: Ensuring Continuity of Care

Given the complexities of "ordinary residence," disputes between local authorities are not uncommon. However, it is paramount that individuals do not go without the care they need while these disputes are resolved. The Care and Support (Disputes Between Local Authorities) Regulations 2014 provide a clear framework for how these situations should be managed. These regulations apply not only to ordinary residence disputes under Part 1 of the Care Act 2014 but also to disputes concerning continuity of care (Section 37) and temporary duties arising from provider failure (Section 48). Importantly, the Explanatory Note to these regulations confirms they also apply to disputes about ordinary residence for the purposes of Section 117 of the Mental Health Act 1983.

Here's a breakdown of what local authorities should do in the event of a dispute:

1. No Delay in Meeting Needs

• Immediate Responsibility: The local authority that is currently meeting the individual’s needs on the date the dispute arises must continue to do so until the dispute is resolved.
• If no one is meeting needs: If no local authority is currently meeting the needs, the authority in whose area the adult is living or physically present must accept provisional responsibility and perform the duties under Part 1 of the Act as if the adult were ordinarily resident in its area. This authority becomes the "lead authority" for the dispute.
• Urgent Needs: If a person ordinarily resident in one area develops urgent needs in another, the local authority of the "moment" has the power to meet those urgent needs without seeking consent from the ordinary residence authority, though they should notify them. This local authority can also seek to recover costs from the ordinary residence authority.

2. Internal Dispute Resolution - The First Four Months

Local authorities are mandated to take all reasonable steps to resolve the dispute between themselves before escalating it. This involves a structured process:

• Identification and Coordination: As soon as reasonably practicable, the "lead authority" must identify all other local authorities involved in the dispute and coordinate discussions to attempt resolution.
• Named Contacts: Each involved local authority must nominate an individual as a point of contact for the dispute and share their contact details.
• Information Sharing: The lead authority is responsible for coordinating the exchange of all relevant information between the parties to help resolve the dispute. All authorities involved must engage in constructive dialogue and comply with reasonable requests for information without delay.
• Informing the Individual: The lead authority must keep the adult or carer to whom the dispute relates, or their representatives, fully informed about the progress of resolving the dispute.
• Collaboration: Authorities must cooperate with each other in discharging their duties under these regulations.

3. Escalation to the Secretary of State

If the local authorities are unable to resolve the dispute between themselves within four months of the date it arose, the lead authority must apply for a determination to the Secretary of State for Health and Social Care or an appointed person.

• Application Requirements: The referral to the Secretary of State must include:
• A signed letter from the lead authority stating the referral.
• A "statement of facts" signed on behalf of each authority. This should include:
• An explanation of the nature of the dispute and its chronology.
• Details of the adult's or carer's needs from the beginning of the dispute period.
• Which local authority has met those needs, how, and under what statutory provisions.
• Details of the adult's residence history relevant to the dispute.
• If relevant, a statement on the adult's capacity to decide where to live, or information pertaining to it.
• Details of steps taken to resolve the dispute internally.
• Any other relevant information.
• Copies of all correspondence between the authorities related to the dispute.
• Legal Arguments: Any legal arguments relied upon by the authorities must be submitted within 14 days of the dispute being referred. Copies of these arguments must be shared with all other parties.
• Further Information: Authorities must comply without delay if the Secretary of State or appointed person requests further information.
• Determination: The Secretary of State will not allow disputes to run indefinitely and will proceed to make a determination once parties have had adequate opportunity to make representations. The provisional acceptance of responsibility by the lead authority will not influence this determination.
• Cost Recovery: If the determination finds a different local authority to be ordinarily resident, the lead authority that provisionally met the needs may recover costs from the authority deemed responsible.
• Review of Determination: A local authority may ask the Secretary of State to reconsider the original determination by way of a review within 3 months of the original determination date.

4. Specific Considerations in Disputes

• Continuity of Care (Section 37): If a dispute arises regarding a person moving between local authorities, the authorities must perform their duties under Sections 37 and 38 of the Care Act, ensuring no interruption to care, despite the dispute.
• Provider Failure (Section 48): The regulations also cover disputes specifically about cooperation or cost recovery in cases of provider failure, with slightly modified referral requirements. If a provider fails in a cross-border placement, the host authority has a temporary duty to meet needs and can recover costs from the placing authority.
• Debt Recovery and Capacity: Where debts have accrued due to care charges, especially if capacity is diminishing, local authorities should involve safeguarding teams. If the person lacks capacity and has no attorney or deputy, an application for deputyship may be required before court action. The local authority must offer the person (or their attorney/deputy) the option of repaying the debt through a Deferred Payment Agreement (DPA) before seeking to enforce it via County Court proceedings. Principles for debt recovery emphasise reasonableness, affordability, and court action as a last resort.
• Cross-Border Placements: Specific regulations and a process exist for cross-border placements within the UK, emphasising that responsibility generally remains with the placing authority and cooperation between authorities in different jurisdictions.

Understanding these nuances is crucial for seamless, patient-centred care and for ensuring that financial responsibilities are correctly assigned, avoiding unnecessary disputes and delays in service provision. When in doubt, professionals should always refer to the specific regulations and guidance and seek legal advice where complex situations arise.