Section 117 & Ordinary Residence ~ All change yet again
R (Worcestershire CC) v Department of Health and Social Care and Swindon Borough Council [2021] EWHC 682 (Admin).
Put simply – put very simply – the High Court has decided that the Department of Health and Social Care was wrong to have changed its mind in June 2020. That the previous Statutory Guidance concerning Ordinary Residence under section 117 Mental Health Act 1983 was correct.
The guidance, cited by Liden J at para 139 of his exhaustive judgment, stated:
Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the 1983 Act, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.”
As the posting on the Department of Health’s earlier change of mind in June 2020 observed – the case is likely to produce a large number of ordinary residence disputes between local authorities (and claims for repayments) – it is a case that has ‘legs’ as the Department of Health and Social Care has indicated it may appeal the decision. It could, of course, save all this trouble and many many of our brain cells – by simply amending the law to give some legal certainty?
Posted 22 March 2021