Guide to determining ordinary residence for aftercare under the Mental Health Act

By Tim Spencer-Lane

Determining the ordinary residence of a service user is sometimes a highly contested matter. This is mainly because ordinary residence will normally determine which local authority is responsible for arranging and funding a person’s care plan.

Under section 117 of the Mental Health Act 1983 (MHA) there is the added ingredient that the person cannot be charged for services and therefore the costs for the relevant local authority are often higher.

This guide provides a brief overview of how to establish the ordinary residence of those entitled to “aftercare” services under section 117.

It takes into account the decision of the Supreme Court in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.

What does section 117 say?

Section 117 of the MHA is a duty to provide aftercare services to people who have been detained under sections 3, 37, 45A, 47 or 48 of the MHA and who then cease to be detained and leave hospital.

The duty is placed on health authorities and local social services authorities in whose area the person concerned was “ordinarily resident” immediately before being detained (section 117(3)).

Section 117(4) provides that disputes between local social services authorities in England about a person’s ordinary residence under section 117 may be referred to and determined by the secretary of state for health and social care.

A local social services authority can also request a review of a determination by the secretary of state.

How to determine ordinary residence

There is no statutory definition of ordinary residence. Its meaning and the principles for determining where a person is ordinarily resident have been developed through case law.

The leading authority is R v Barnet LBC ex p Shah [1983] 2 AC 309, where Lord Scarman said: “…‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration”.

This is known as the ‘Shah test’. Chapter 19 of the care and support statutory guidance, under the Care Act 2014, explains how this test should be applied.

In most cases, working out a person’s ordinary residence will be straightforward.

However, difficulties arise, for example, when applying the Shah test to determine the ordinary residence of a person who lacks capacity to decide for themselves where to live.

According to the care and support statutory guidance, local authorities should adopt the Shah approach, but place no regard to the fact that the adult, by reason of their lack of capacity, cannot be expected to be living there voluntarily.

This involves considering all the facts, such as the place of the person’s physical presence, their purpose for living there, the person’s connection with the area, their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant) to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration (paragraph 19.32).

When is responsibility for section 117 fixed?

As described above, under section 117, ordinary residence is determined by where the person was living “immediately before” they were detained under the MHA. So, to provide a straightforward example:

• If the person was ordinarily resident in local authority A before being detained under section 3 of the MHA, and
• on discharge moves to local authority B,
• then local authority A will remain responsible for the person’s section 117 aftercare.

In effect, local authority A would continue to be responsible for section 117 services even though the person is now living in a different area.

Indeed, local authority A would continue to be responsible for section 117 services even if the person subsequently moved again to a third local authority area.

But what happens if the person is subsequently re-detained for treatment under the MHA?

What happens if the person is detained again?

The Supreme Court, in Worcestershire, confirmed that, in such cases, the section 117 ends when the person is re-detained. When they are discharged, responsibility for the new section 117 duty will lie with the authority in whose area the person was ordinary resident immediately before their most recent detention. So, for example:

• If the person was living in local authority A before being detained under section 3 of the MHA, and
• on discharge moves to local authority B but is subsequently detained again under section 3 of the MHA,
• then local authority B will become responsible for the person’s aftercare.

Therefore, local authority B becomes responsible because at the point in time when the service user was detained on the second occasion they were ordinarily resident in local authority B’s area (even though local authority A had been responsible for their aftercare services).

This interpretation is also confirmed by the care and support statutory guidance for the Care Act (see below).

Do deeming rules apply to section 117?

The so-called ‘deeming rules’ apply for the purposes of the Children Act 1989, the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014.

In very simple terms, they provide that where a person is placed by a local authority into the area of another local authority (for example, in a care home), the person is ‘deemed’ to be ordinarily resident in the placing authority.

• So, if the person living in local authority A was placed into a care home within the area of local authority B,
• then local authority A will remain responsible for the person’s care services.

However, the Supreme Court decision in Worcestershire confirmed that section 117 does not contain any deeming rules.

This interpretation is confirmed by the care and support statutory guidance (see below).

The Care Act statutory guidance

The relevant parts of the care and support statutory guidance on section 117 aftercare are repeated below.

“Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the MHA, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care.

“However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.” (paragraph 19.64)

“There are several provisions in the Care Act (section 39(1)-(3) and (5)-(7) and paragraph 2 of Schedule 1) which deem a person to be ordinarily resident in a particular local authority’s area in specified circumstances for the purposes of Part 1 of the Act. These deeming provisions do not apply to section 117 of the 1983 Act, nor have they been incorporated into section 117 of the 1983 Act.” (paragraph 19.67)

When does section 117 end?

The section 117 duty lasts until the health authority and local social services authority are satisfied that the person is no longer in need of such services (section 117(2)).

The MHA code of practice (paragraphs 33.20 to 22.24) sets out that aftercare services should not be withdrawn solely on the grounds that, for example, the patient has been discharged from the care of specialist mental health services or returned to hospital informally or under section 2.

It also states that “fully involving the patient and (if indicated) their carer and/or advocate in the decision-making process will play an important part in the successful ending of aftercare”.

In addition, the Supreme Court decision in Worcestershire confirmed that section 117 automatically ceases if the person concerned is re-detained for treatment for mental disorder under section 3 (or one of the other specified provisions).

The judgment also says that the section 117 duty will end, for example, if the person concerned “were to die or was deported or imprisoned”.

It is not explained why this is considered to be the case, particularly in respect of prisoners who have not yet been made subject to sections 45A, 47 or 48 of the MHA. But the judgment clearly says that such a person ceases to be someone to whom section 117 applies*.

*This section of the guide has been updated.