R (Sunderland City Council) v South Tyneside Council
| Jurisdiction | England & Wales |
| Judge | Lloyd,Richards,Elias LJJ |
| Judgment Date | 09 October 2012 |
| Date | 09 October 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2011/2542 |
Neutral Citation: [2012] EWCA Civ 1232
Court of Appeal
Judges: Lloyd, Richards and Elias LJJ
C1/2011/2542
Appearances: H Harrop-Griffiths and S Fuller (instructed by Sunderland City Council) for Sunderland; N Lieven QC and C Mitford (instructed by South Tyneside Council) for South Tyneside.
Issues: Whether and in what circumstances admission to hospital may alter a patient's place of residence for the purposes of s117(3) Mental Health Act 1983, so as to change the local authority responsible for the provision of aftercare under that section.
Facts: In September 2009, SF, who had previously been detained under s3 Mental Health Act 1983 in 2007, entered a residential college in Sunderland, living in a hall of residence. After a few weeks, she attempted suicide and was admitted to a hospital in South Tyneside informally, but, after absconding, in December 2009 she was detained there under s2 of the 1983 Act and then s3; in June 2011, she was moved to a hospital in Yorkshire, still detained under s3. The college placement and accommodation in Sunderland had been withdrawn because she was not attending due to her hospital stay.
In November 2010, South Tyneside Council set out a position that Sunderland was responsible for funding any aftercare under s117 of the 1983 Act, which turns on where the patient was resident when detained. Sunderland sought judicial review of this position, contending that South Tyneside was responsible because SF lost her residence in Sunderland when she became an informal patient in the South Tyneside hospital and became resident there. The judge ([2011] MHLR 374) ruled that the question involved weighing various relevant factors to assess where a person had chosen to live for settled purposes; that SF's admission to the hospital in South Tyneside did not meet that test; and that she had not lost her residence in Sunderland as a result of the action of a third party in withdrawing the placement there.
Sunderland appealed, arguing that the judge asked the wrong question, because he applied a test relevant to the concept of ordinary residence rather than residence, and in any event gave the wrong answer to the test he formulated.
Lloyd LJ:
1. 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 s117 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 s3 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.
2. MHA provides in s3 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 s131.
3. The appeal is concerned with the situation that arises when a person who has been detained under s3 ceases to be so detained and (whether or not immediately) leaves hospital: see s117(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, s117(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.
4. Before I embark on the legal issues arising from the legislation and the present facts I will set out the material facts in summary.
5. In 2007, when she was 18 years old, SF was detained for the first time under MHA s3. 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 3 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 s5(4) at the Queen Elizabeth Hospital.
6. 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.
7. 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 s2. 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 s3 for treatment at Rose Lodge.
8. On 2 June 2011 SF moved to another hospital, this one located in Yorkshire, still under detention under MHA s3. 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 s3.
9. In R (Hertfordshire County Council) v Hammersmith and Fulham LBCMHLR[2011] MHLR 76, to which I will refer as the JM case, the Court of Appeal held that during a period of detention the person in question is not resident for the purposes of s117(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 JM case approved and explained an earlier decision at first instance, R (Hall) v Mental Health Review TribunalMHLR[1999] MHLR 49, [1999] 3 All ER 132 (the Hall case), 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 JM case and the Hall case later.
10. 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.
11. 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 para 7 of his judgment he said this:
‘I conclude that her admission to Rose Lodge was not...
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