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Cornerstone Barristers act in judicial review on ordinary residence

30.06.2020

Two members of the Cornerstone Barristers Health and Social Care Team, Peggy Etiebet and Lee Parkhill, are instructed in judicial review proceedings to determine which authorities are responsible for providing after-care under s. 117 of the Mental Health Act 1983.

Section 117 of the 1983 Act imposes on local authorities, and the NHS, a duty to provide after-care to patients detained under the Act. Generally, the duty falls on the authorities for the area where the patient was ordinarily resident at the time they were detained. The Secretary of State has the function of determining disputes as to which local authority owes the duty.

The proceedings are concerned with how the duty operates where a patient is detained for a second time. The Secretary of State's statutory guidance explains that (i) if a patient is ordinarily resident in area A, and is detained, (ii) he then moves into area B, in accommodation funded by authority A, pursuant to s. 117, and (iii) he is detained again, the s. 117 duty starts afresh, and would fall on authority B – because the patient (usually) acquires ordinary residence while living in area B.

However, in a dispute between Worcestershire County Council and Swindon Borough Council, the Secretary of State decided that his guidance is wrong, and relied on three reasons for saying that the authority for the area of the first detention retains responsibility. Those reasons include (i) that unless there is an express decision to discharge the s. 117 duty, the duty from the first detention persists during any subsequent admission, and (ii) the decision of the Supreme Court in Cornwall [2015] UKSC 46 applies to s. 117 and so, as a matter of policy, a former patient placed in accommodation out of area, pursuant to s. 117, should be treated as ordinarily resident in the area of the authority which arranged the accommodation.

Lee Parkhill is instructed by the claimant, Worcestershire County Council, challenging the Secretary of State's determination. Peggy Etiebet acts for the interested party, Swindon Borough Council, seeking to uphold the determination.