Sunderland City Council, R (on the application of) v SF & Anor

For the purposes of section 117(3) of the Mental Health Act 1983, resident does not import the distinct statutory concept of ordinary residence. Its meaning depends on the provision's context and purpose.

The place in which a patient is compulsorily detained cannot ordinarily determine residence. That is a limited, judicially recognised exception. It cannot be extended to a preceding period of voluntary admission, even where compulsory detention would probably have followed a refusal to consent.

A patient may retain an earlier residence during a voluntary hospital stay. However, when that accommodation ceases to be available and the patient voluntarily remains in hospital, the hospital may become the only residence unless the exceptional default position of no residence is clearly established.

SF had lived at Westfield Hall in Sunderland under a residential college placement. Following a suicide attempt, she was admitted voluntarily to Rose Lodge, an NHS hospital in South Tyneside. Her college placement and entitlement to occupy Westfield Hall ended while she remained at Rose Lodge. She was subsequently detained under sections 2 and 3 of the Mental Health Act 1983.

Langstaff J held that SF had not become resident at Rose Lodge and that South Tyneside was the authority responsible for her after-care: [2011] EWHC 2355 (Admin). Sunderland appealed. The central question was which local social services authority was responsible under section 117(3) when SF was eventually discharged from detention.

1. Appeal allowed unanimously. The court declared that South Tyneside Council was the local social services authority for the purposes of section 117(3) of the Mental Health Act 1983 in relation to SF.

2. The word resident in section 117(3) is an unqualified ordinary English word. Its meaning must be derived from the terms, purpose and context of the Act. It does not mean the same as ordinary residence under section 24 of the National Assistance Act 1948, and the ordinary-residence test in R (Shah) v Barnet LBC was not a helpful guide.

3. The rule that a patient is not resident in the hospital in which they are compulsorily detained is a special exception required by the policy of section 117. It prevents the hospital's location from almost invariably fixing liability for after-care. It does not permit the court to disregard a continuous period of voluntary admission before detention, nor to select the date of voluntary admission as conclusively determinative.

4. Voluntary admission did not initially displace SF's residence at Westfield Hall. Her absence was then temporary and that accommodation remained available. Once the placement ended, however, she could not remain resident there. Rose Lodge was the place where she was then voluntarily living, eating and sleeping, and no other available residence displaced it.

5. The possibility that detention would have occurred had SF withheld consent did not make her voluntary admission equivalent to detention. A contrary approach would require an uncertain retrospective inquiry and would create an unwarranted extension of the detention exception. The residual possibility that a patient has no residence is a last-resort default, confined to extreme and clear cases; this was not such a case.

• Court of Appeal (Civil Division): Allowed Sunderland's appeal and declared South Tyneside Council responsible under section 117(3) of the Mental Health Act 1983: [2012] EWCA Civ 1232.
• Administrative Court: Langstaff J decided the issue in South Tyneside's favour: [2011] EWHC 2355 (Admin).