Hertfordshire County Council, R (on the application of) v London Borough of Hammersmith & Fulham (Rev 1)

For the allocation of statutory mental-health after-care responsibility, a person’s residence under section 117(3) of the Mental Health Act 1983 is distinct from ordinary residence under the National Assistance Act 1948. The latter Act’s deeming provision cannot be imported into the free-standing section 117 scheme.

Compulsory detention under the 1983 Act is disregarded when identifying residence because section 117 distinguishes the place of residence from the hospital of detention. By contrast, time spent in residential accommodation provided under section 21 of the 1948 Act cannot be disregarded merely because the placement was arranged by a local authority or the patient had little practical choice.

The appeal concerned which social services authority must provide after-care for a patient discharged following compulsory detention under section 3 of the Mental Health Act 1983. Hertfordshire County Council sought a declaration that “is resident” in section 117(3) had the same, or substantially the same, meaning as “is ordinarily resident” in section 24 of the National Assistance Act 1948.

Mitting J had dismissed two judicial-review applications on 3 March 2010. The illustrative facts concerned JM, who had previously lived in Hammersmith and Fulham but was placed in residential accommodation in Sutton before his section 3 detention. The central issue was whether the 1948 Act’s ordinary-residence deeming rule carried across to the separate after-care regime.

1. Appeal dismissed and declaration refused. Carnwath LJ, with whom Rimer and Sullivan LJJ agreed, held that Parliament deliberately used a different formula in section 117(3) of the Mental Health Act 1983 from that used in section 24 of the National Assistance Act 1948. The court could not rewrite “is resident” to mean “is ordinarily resident”. Nor could it import the deeming provision in section 24(5) into a statute to which that provision was expressly confined.

2. Section 117 is a free-standing source of power and duty, independent of the 1948 Act, as established in R v Manchester City Council, ex p Stennett [2002] 2 AC 1127. Parliament’s express extension of deeming rules to certain health-authority accommodation reinforced the conclusion that no equivalent rule applied generally to section 117 after-care.

3. The period of compulsory detention must nevertheless be disregarded when identifying the area in which the patient “is resident”. Section 117(3) implicitly treats residence as distinct from the hospital of detention. The hospital’s area is relevant only to the alternative criterion concerning the area to which the patient is sent on discharge. This explained and approved the result in R v MHRT, ex p Hall [1999] 3 All ER 132.

4. No legitimate method of statutory interpretation permitted the court also to disregard a prior residential placement made under section 21 of the 1948 Act. Such a placement is not compulsory, even where the patient has little practical choice. The absence of any express or implied link between sections 21 and 117 prevented the court from excluding the placement period for policy reasons.

5. The legitimate-expectation argument was unsuitable for determination in the abstract. In any event, co-operation or a non-statutory agreement between authorities could not override responsibility imposed by the true construction of the statute.

1. Court of Appeal (Civil Division): The court unanimously dismissed Hertfordshire County Council’s appeal and refused the requested declaration: [2011] EWCA Civ 77.

2. High Court, Administrative Court: Mitting J dismissed both judicial-review applications on 3 March 2010. No neutral citation is stated in the judgment.

3. Permission to appeal: Jackson LJ granted Hertfordshire County Council permission on 13 May 2010. Neither JM nor the London Borough of Sutton appealed the judgment concerning JM.