R Sunderland City Council v South Tyneside Council Sf and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Richards,Lord Justice Elias |
| Judgment Date | 09 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1232 |
| Docket Number | Case No: C1/2011/2542 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2012 |
[2012] EWCA Civ 1232
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Richards
and
Lord Justice Elias
Case No: C1/2011/2542
Hilton Harrop-Griffiths and Steven Fuller (instructed by Sunderland City Council) for the Appellant
Nathalie Lieven Q.C. and Christopher Mitford (instructed by South Tyneside Council) for the Respondent
The Interested Parties were not present or represented
Hearing date: 10 July 2012
Introduction
This appeal is against an order of Langstaff J made on 15 July 2011 in the Administrative Court. The issue is as between Sunderland City Council (Sunderland), which was the applicant for judicial review and is the appellant, and South Tyneside Council (South Tyneside) which was and is the respondent, as to which of them (if either) is the local social services authority (LSSA) which will be responsible under section 117 of the Mental Health Act 1983 (MHA, or the Act) for the after-care of a young woman, referred to in the case as SF, after she is discharged from the hospital where she is at present undergoing treatment and detained pursuant to section 3 of MHA. The judge decided in favour of South Tyneside and refused permission to appeal, but Arden LJ gave permission to appeal at an oral hearing. Given the potential burden on the responsible authority of the cost of after-care in some such cases, which may extend over a considerable period, it is understandable that an authority should seek to resist having the liability cast on it in a case of doubt, and particularly so because, as we were given to understand, the result under the judge's order is contrary to what may have been the expectations of those involved at relevant times.
MHA provides in section 3 for a patient to be admitted to a hospital and detained there for a period, upon conditions laid down in that and other provisions of the Act. This is what is sometimes referred to, in common parlance, as being "sectioned". Section 2 provides for a patient to be admitted to a hospital and detained for a limited period for assessment. Both of these provisions allow the patient to be admitted to hospital against his or her will. They can be applied to a patient who is already in hospital as an in-patient. None of the provisions of the Act as regards compulsory admission or detention precludes the admission of a patient who requires treatment for mental disorder from being admitted to hospital on a voluntary basis; this is sometimes called informal admission: see section 131.
The appeal is concerned with the situation that arises when a person who has been detained under section 3 ceases to be so detained and (whether or not immediately) leaves hospital: see section 117(1). When that happens, a local authority becomes responsible for the after-care of the person so discharged. Section 117(2) provides, so far as material, that it is the duty of "the local social services authority", in cooperation with other agencies, to provide after-care services for such a person until they are satisfied that the person concerned is no longer in need of such services. So, one has to ask: which is the relevant local authority? As to that, section 117(3) says that, in the section, "the local social services authority" means the local social services authority "for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained". So the question on this appeal is what area (if any) will be "the area in which [SF] is resident" upon her eventual discharge. Although the question looks to the future it is unlikely that any change in circumstances that may occur hereafter will affect the answer to the question.
The material facts
Before I embark on the legal issues arising from the legislation and the present facts I will set out the material facts in summary.
In 2007, when she was eighteen years old, SF was detained for the first time under MHA section 3. She was then based in Leeds. She was later discharged from that detention. Leeds City Council (Leeds CC) was at that time the relevant LSSA. In 2008 Leeds CC placed SF at a residential college in Scunthorpe. In September 2009 Leeds CC placed her at a residential course at another institution, ESPA College in Sunderland, and in this connection she lived in a hall of residence called Westfield Hall. It is common ground that at this stage SF was resident there, that is to say in the area for which Sunderland is the LSSA. Having been living there for some three weeks, on 3 October 2009 SF attempted to commit suicide. She was taken to Sunderland Royal Hospital, then to Queen Elizabeth Hospital, Gateshead, and after that on 6 October to South Tyneside District Hospital, in all of these cases, as I understand it, as a voluntary patient, apart from a brief period of detention (it cannot have exceeded 6 hours) under MHA section 5(4) at the Queen Elizabeth Hospital.
On 7 October 2009 SF was moved, with her consent, to Rose Lodge, which is in the area of South Tyneside. This is a purpose built NHS hospital designed for patients with learning difficulties and providing short term treatment. SF does not have learning difficulties. SF did consent to this move but it is likely that if she had not given her consent, compulsory powers would have been used.
On 23 October 2009 ESPA College terminated her placement with the college, and with it her licence to live at Westfield Hall. On 9 December 2009 SF absconded from and initially refused to return to Rose Lodge. On 10 December 2009, when she did return to Rose Lodge, SF was detained for assessment there under MHA section 2. At this stage, it appears, Leeds CC still accepted responsibility for her as being the relevant LSSA. On 24 December 2009 SF was detained under MHA section 3 for treatment at Rose Lodge.
On 2 June 2011 SF moved to another hospital, this one located in Yorkshire, still under detention under MHA section 3. We were told that recently she has moved to yet another hospital, this one located in the area of Sunderland, but that she still remains under detention under MHA section 3.
The cases of JM and Hall
In R (Hertfordshire County Council) v. Hammersmith and Fulham London Borough Council [2011] EWCA Civ 77, to which I will refer as the JMcase, the Court of Appeal held that during a period of detention the person in question is not resident for the purposes of section 117(3) in the hospital in which he or she is detained. Otherwise such a person would always, or almost always, be resident in the area of the relevant hospital. The decision in the JMcase approved and explained an earlier decision at first instance, R (Hall) v Mental Health Review Tribunal [1999] 3 All ER 132 (the Hallcase), where Scott Baker J said that the relevant local social services authority was that for the area in which the patient was resident when he was detained. He also said that residence for this purpose means ordinary residence. I will come back to the JMcase and the Hallcase later.
It follows that, in almost all cases of this kind, it will be necessary to look back at the position as it was some time ago in order to determine the place of residence for the purposes of the section, if for no other reason than that the issue arises on discharge from detention but that, in making that determination, the place of detention, that is to say the hospital, has to be ignored. Given the exclusion of the hospital, only rarely would there be any possible place of residence other than a place or places which had been relevant before the period of detention. The detention may last for some considerable number of years, so that it may be necessary to look back quite a long time.
The judgment below
It is agreed in the present case that SF was resident in Westfield Hall from 14 September to 3 October 2009. So the issue is whether what happened after that meant that she ceased to be resident there and became either resident in Rose Lodge instead, or not resident anywhere. The judge held that she did not change her residence. Towards the end of paragraph 7 of his judgment he said this:
"I conclude that her admission to Rose Lodge was not compulsory, but it was closely analogous to a compulsory admission. There were powers to detain by compulsion in the background, which it is reasonable to assume that SF, the staff of the lodge and those concerned with her and South Tyneside Council were well aware of."
From that, when he came later in his judgment to review the factors relevant to the issue of residence, he said this at paragraphs 24 and 25:
"24. … In examining voluntariness, though I conclude that SF might have exercised a choice formally not to be present in hospital and then at Rose Lodge, in my view I am entitled to, and do, take into account that the circumstances within which I have to categorise and evaluate the question of residence came close to being involuntary; in the same way as the person in hospital having had a serious injury, present there for treatment, might say colloquially that they had no choice but to stay where they were, although legally they were not present under compulsion.
25. Here, SF was not compelled, save by the force of circumstances, to be at...
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