Worcestershire County Council, R (on the application of) v Essex County Council

For the purposes of Mental Health Act 1983, s 117, residence is ordinarily determined by identifying where the person was actually living, eating and sleeping immediately before detention. Compulsory detention under ss 2 and 3 is disregarded because the statutory scheme treats the place of detention separately from the place of residence. Other periods are not excluded merely because the person may have been deprived of liberty or lacked capacity. Voluntariness and capacity may be relevant to whether an established residence elsewhere continued, but they are not prerequisites for acquiring residence. The court should apply the statutory test directly and should not conduct a retrospective or policy-based inquiry to decide which authority ought to bear responsibility.

Worcestershire sought a declaration that Essex was responsible under s 117 of the Mental Health Act 1983 for funding after-care services for VC following her discharge from detention under s 3. VC had moved from Grafton Manor in Northamptonshire to Oaktree Manor in Essex on an emergency basis and was detained under ss 2 and 3 shortly afterwards.

The central issue was whether VC was resident at Oaktree immediately before her detention, despite the short duration of her stay, the emergency nature of the placement, and arguments concerning her capacity and possible deprivation of liberty.

1. Statutory construction. Section 117 requires the relevant authority to be identified primarily by the person’s residence, with the authority for the place to which the person is sent on discharge operating only as a fall-back. The compulsory detention which triggers the after-care obligation must be disregarded. That reasoning extends to detention for assessment under s 2 which immediately precedes detention for treatment under s 3, because both form part of the same process.
2. Meaning of residence. The relevant concept is simple residence, not ordinary, normal or habitual residence. The starting point is the place where the person was in fact living, eating and sleeping immediately before detention. An established home elsewhere may remain the residence where the person is temporarily absent, for example because of imprisonment or a short-term hospital admission.
3. Capacity and voluntariness. The exclusion of compulsory detention does not extend to every period which might amount to deprivation of liberty. Residence may be acquired whether the person is present voluntarily or involuntarily, whether the person lacks capacity, or whether the decision has been made on the person’s behalf. A retrospective inquiry into capacity would be inconsistent with the need for a workable system in which responsibility can be identified before discharge.
4. Application. VC had no continuing placement at Grafton and no other identified home when she moved to Oaktree. The placement was indefinite, although a later move was contemplated. Oaktree was therefore her residence for s 117 purposes from the date of the move. The claim succeeded and an order was directed accordingly.