Wiltshire Council, R (On the Application Of) v Hertfordshire County Council

For the purposes of section 117(3) of the Mental Health Act 1983, compulsory detention is disregarded when determining residence. A person made subject to a hospital order with restrictions, conditionally discharged, recalled to hospital and conditionally discharged again remains resident in the area of the authority identified by the relevant pre-detention residence.

Responsibility does not transfer merely because the person is sent to accommodation in another authority’s area. Accommodation occupied under a tribunal-imposed discharge condition is not voluntary in a way that alters the statutory allocation. The fallback reference to the place to which a person is sent on discharge applies where the person has no current residence.

Wiltshire Council sought judicial review of Hertfordshire County Council’s refusal to accept responsibility for SQ’s after-care under section 117 of the Mental Health Act 1983. SQ had originally been made subject to a hospital order with restrictions, had been conditionally discharged to Hertfordshire, recalled to hospital, and conditionally discharged again to the same accommodation.

Permission for judicial review was refused on the papers and on renewal. Arden LJ granted permission to appeal and directed that the case be retained in the Court of Appeal. The issues were whether the recall created a fresh after-care duty and whether SQ was resident in Hertfordshire. The residence issue was treated as determinative.

Bean J gave the judgment of the court, with Kitchin LJ and Moses LJ agreeing. The application for judicial review was dismissed.

1. Under section 117(3) of the Mental Health Act 1983, the primary question is where the person is resident. The reference to the place to which a person is sent on discharge is a fallback for a person without a current residence. It does not make the authority responsible for the person’s residence cease to be responsible merely because discharge is to another authority’s area. The court followed R v Mental Health Review Tribunal ex parte Hall [1999] 3 All ER 132.
2. The period of compulsory detention must be disregarded when assessing residence. This approach was confirmed in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] EWCA Civ 77; [2011] LGR 536. The resulting need to examine residence before detention may appear artificial, but it follows from the statutory scheme.
3. Recall did not break the chain of causation in this case. SQ’s liability to detention and recall continued to derive from the original hospital order with restrictions. That differed from successive admissions under section 3, each involving a fresh decision, and from an absolute discharge. Accordingly, SQ remained resident for section 117 purposes in the area in which he lived before the original order. It was unnecessary to decide whether the second discharge created a fresh or continuing duty.
4. SQ’s preference to remain in Hertfordshire did not alter the result. Residence at Winnett Cottage was required by a tribunal-imposed condition of discharge. The court applied the approach in R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232; [2013] 1 All ER 394, that residence depends on more than physical presence and may require consideration of why the person is there and whether the presence is voluntary.
5. The court noted amendments made by the Care Act 2014, including an ordinary-residence test and a new section 117A, but held that provisions not yet in force were not a useful guide to interpreting the existing legislation.

• Court of Appeal (Civil Division): Permission to appeal was granted by Arden LJ and the case was retained for determination. The application for judicial review was dismissed: [2014] EWCA Civ 712.
• High Court of Justice: Judge Seys-Llewellyn refused permission for judicial review on the papers. Judge Denyer QC refused the renewed application at an oral hearing.