M, R (on the application of) v London Borough of Hammersmith and Fulham & Anor

For compulsory patients discharged under section 3 of the Mental Health Act 1983, responsibility for after-care under section 117 depends on the patient’s ordinary residence in its natural sense, not on deeming provisions in the National Assistance Act 1948. “Resident”, “ordinarily resident” and “normally resident” generally connote settled presence voluntarily adopted. A deeming provision operating only “for the purposes” of the 1948 Act cannot be carried across into the 1983 Act without express statutory language. A local-authority agreement may support a legitimate expectation, but evidence of a clear agreement alone is insufficient; consistent and lawful past compliance must also be established.

Two linked judicial review claims concerned the authority responsible for accommodation and services for a person detained under section 3 of the Mental Health Act 1983 and discharged into the community. JM had previously lived in Hammersmith and Fulham, was placed in accommodation in Sutton, and was later detained in Sutton Hospital. Sutton and Hertfordshire disputed whether responsibility remained with Hammersmith and Fulham or rested with the authority for the area in which JM resided when detained or to which he was sent on discharge. The court also considered whether a 1988/1989 local-authority agreement created a legitimate expectation.

1. Construction of the statutory schemes. The duty under section 21 of the National Assistance Act 1948 ceased when JM was detained under section 3 of the Mental Health Act 1983, because his need for care and attention was then otherwise available through hospital detention.
2. Residence. “Resident”, “ordinarily resident” and “normally resident” have no perceptible difference in this context. They refer to settled presence voluntarily adopted, rather than enforced presence. JM was resident at Ronau House when admitted under section 3. His earlier Hammersmith and Fulham tenancy had ended and he had no home there.
3. Deeming provision. Section 24(5) of the 1948 Act deemed a person to remain ordinarily resident in the former area only “for the purposes of this Act”. That deeming rule could not be transposed into section 117 of the 1983 Act. Parliament had demonstrated that express words could produce that effect through section 24(6), inserted by the Health and Social Care Act 2008, although it was not then in force.
4. Section 117 responsibility. Applying section 117(3), Sutton was financially responsible for JM’s accommodation on discharge. In the linked Hertfordshire dispute, Hammersmith and Fulham was correct on the same point. Any resulting anomaly was for Parliament to correct.
5. Legitimate expectation. The 1988/1989 agreement could potentially support a legitimate expectation if it was shown that local authorities had consistently applied it and that compliance was lawful. The evidence did not establish that proposition. The claims therefore succeeded against Sutton on the live issue, and Hammersmith and Fulham succeeded on the issue of principle against Hertfordshire. Hertfordshire and Sutton were ordered to pay Hammersmith and Fulham’s costs on the standard basis; JM’s costs were subject to public funding assessment.

First-instance judicial review decision. No appeal history is stated in the judgment.