COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| THE QUEEN ON THE APPLICATION OF HERTFORDSHIRE COUNTY COUNCIL
|- and -
|LONDON BOROUGH OF HAMMERSMITH & FULHAM
|- and -
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Fenella Morris (instructed by London Borough of Hammersmith & Fulham) for the Respondent
Nathalie Lieven QC & Toby Fisher - Interveners for the Interested Party (instructed by John D Sellars & Co, Solicitors)
Hearing dates : Tuesday 18th January, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
The facts – JM's case
"There is no evidence about his mental capacity to make a decision of that nature or about the advice or the reasons for it given to him by his family. There is no evidence, in short, upon which I could conclude that that was anything other than the voluntary act of a man with capacity to perform the act, albeit a capacity which was for many other purposes impaired."
Miss Lieven drew our attention to the contrast between that finding and the statement in LBHF's Detailed Grounds of Defence dated 17th December 2009:
"It appears that JM lacks capacity to decide where he should reside. In consequence JM's expressed wishes as to his residence are of limited significance."
Miss Morris told us, without dissent, that the judge's comments on that issue were based on new information obtained at his request during the hearing, and to that extent should be regarded as superseding the Detailed Grounds. I see no basis on which we can go behind the judge's finding of fact on this point.
"his continuously expressed wish to return to Hammersmith and Fulham where he has friends and feels in familiar surroundings".
"21 Duty of local authorities to provide accommodation
(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-
(a) residential accommodation for persons [aged eighteen or over] who by reason of age, [illness, disability] or any other circumstances are in need of care and attention which is not otherwise available to them...
24 Authority liable for provision of accommodation
(1) The local authority empowered under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.
(5) Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him."
(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above… and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.
(2) It shall be the duty of the Primary Care Trust ... and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust ... and the local social services authority are satisfied that the person concerned is no longer in need of such services..
(3) In this 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."
"There may well be a reasonable view that generally patients compulsorily admitted under sections 3 and 37 pose greater risks upon discharge to themselves and others than compliant patients. Moreover, Parliament necessarily legislates for the generality of cases."
He cited with approval Buxton LJ's observation in the Court of Appeal ( QB 370 at p 386B-C):
"the statutory provision is not at all anomalous, and not at all surprising. The persons referred to in section 117(1) are an identifiable and exceptionally vulnerable class. To their inherent vulnerability they add the burden, and the responsibility for the medical and social service authorities, of having been compulsorily detained. It is entirely proper that special provision should be made for them to receive after-care, and it would be surprising, rather than the reverse, if they were required to pay for what is essentially a health-related form of care and treatment."
"It seems that the clause originated as a backbench amendment in the House of Lords. It was opposed by the government in both the House of Lords and the House of Commons upon the basis that it was unnecessary because it would merely duplicate existing obligations upon local authorities. Thus the government thought that there was no mischief to be aimed at. It is plain that neither house was persuaded by the government's arguments, but what the mischief was does not emerge with sufficient clarity from the debates for the material in Hansard to be of any assistance for present purposes." (para 92)
"It has not been suggested in the present case that the appellant is not resident in Torfaen. That is where he was resident prior to admission to hospital and a person does not cease to be resident in the area of an authority by reason only of his admission to hospital (see eg Fox v Stirk  2 QB 46). A patient such as the applicant has a residence notwithstanding he is compulsorily detained in hospital. It is this that fixes Torfaen with responsibility notwithstanding he may never return to their area." (p 143g)
Later in the same judgment he expressed the point in slightly different language:
"For the purpose of s 117 of the 1983 Act the relevant health and social services authorities are those for which the patient is resident ie ordinarily resident, at the time that he is detained, ie in this case Torfaen and Gwent. (emphasis added) "
"For effective application, it is also implicit in the care programme approach that health and social services authorities are able to co-operate and agree an appropriate provision."
"182. Under section 117 of the Mental Health Act 1983 ('the 1983 Act'), local authorities, together with Primary Care Trusts (PCTs), have a duty to provide after-care services to people who have been detained in hospital under certain provisions of the 1983 Act. This duty stands by itself and is not a 'gateway' to the provision of services under other legislation, such as the 1948 Act…
184. The term 'resident' in the 1983 Act is not the same as 'ordinarily resident' in the 1948 Act and therefore the deeming provisions (and other rules about ordinary residence explained in this guidance) do not apply…
187. The term 'resident' is not defined in the 1983 Act, and so, like 'ordinarily resident' the term should be given its ordinary and natural meaning subject to any interpretation by the courts." (emphasis added)
"…, the term resident in section 117 is given a different meaning to ordinary residence under the NAA 1948 and CSDPA 1970, which can lead to a number of difficulties in practice. Confusion can arise because different rules will apply to individual mental health patients depending on whether or not section 117 applies. The problem is compounded by the fact that there is far less guidance or case law to assist with determining the meaning of residency under section 117(3), compared to ordinary residence, and disputes between authorities may be more likely. Furthermore, disputes over the residency of a section 117 patient cannot be referred to the Secretary of State or Welsh Ministers for determination under section 32(3) of the NAA 1948 and consequently, if the dispute cannot be resolved locally, it is necessary to involve the courts."
The judgment of Mitting J
i) Levene v Commissioners of Inland Revenue  1 AC 217 (a tax case), in which reference was made to the Oxford English Dictionary definition of "reside" as meaning –"to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place";and "ordinary residence", which was said to connote -"residence in a place with some degree of continuity and apart from accidental or temporary absences" (per Lord Viscount Cave LC, p 225)
ii) Shah v Barnet London Borough Council  2 AC 309 (eligibility for student grants), in which Lord Scarman cited the tax cases as authoritative and said that, unless "the statutory framework or the legal context" pointed to a different meaning, the expression "ordinarily resident" should be taken as referring 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 of long duration." (p 343G-H)He drew a distinction between residence "voluntarily adopted" and "enforced presence by reason of kidnapping or imprisonment" (p 344B-C). On the other hand, the issue did not depend on the identification of his "real home", nor on his long term future intentions or expectations (p 349D).
iii) Mohammed v LBHF  1 AC 547 (housing duties), in which Lord Slynn said of the expression "normally resident" for the purposes of the Housing Act 1996:"So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides ... Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident." (Page 553C to D)
"25. There seems to me to be no perceptible difference between the three phrases, "resident", "ordinarily resident" and "normally resident". All three connote settled presence in a particular place other than under compulsion. Applying those tests to JM's circumstances and leaving aside the deeming provision in section 24(5) of the 1984 Act, JM was unquestionably resident at Roanu House when he was admitted to Sutton Hospital under section 3 of the 1983 Act. He had lived there for about a year, apart from the period when he was admitted to Sutton Hospital for five or so weeks under section 2 of the 1983 Act. He had abandoned his tenancy of the one bedroomed flat in Hammersmith. He had nowhere to live in Hammersmith. If anyone had asked him the question, and he had been capable of giving a rational answer to it, "where do you now reside?" on 9th April 2008, his answer could only have been "in Roanu House". If he had been asked "do you reside in Hammersmith and Fulham?" he might have said "I wish I did", but he could not sensibly have said "I do"."
"27 … I acknowledge that it does, but the fact that it does cannot lead to a construction of primary legislation which the wording of the legislation does not bear. It should also be remembered that section 117 does not only apply to those who are supported by a local authority under section 21 of the 1948 Act. It applies also to those discharged from mental hospitals who were admitted there as a result of a criminal process or of a transfer from a prison. It applies also to many people who do not require accommodation to be provided for them by a local authority but who have homes of their own and who are afflicted by mental illness.
28. It cannot therefore be said that as a matter of construction Parliament must have intended, when it enacted section 117 or its predecessor in 1982, that the duties owed under the 1948 Act and section 117 should be congruent. If there is an anomaly it is for Parliament to correct. For those reasons..."
"33. I accept that, if there were evidence that local authorities had consistently applied the 1988/89 agreement and it was established that it was lawful to accept financial responsibility for the costs of accommodation and services, Sutton and Hertfordshire could have established a legitimate expectation that Hammersmith and Fulham would comply with the agreement. The material which I have simply does not permit that conclusion. It is notable that, in response to the draft guidance circulated by the Department of Health last year, no local authority, let alone any association of local authorities, submitted to the Secretary of State that the guidance which he was proposing was unhelpful and unnecessary because they had already sorted this out between themselves in 1988 and consistently applied a practice which solved the problem. It may be that there is material which, if put before a court, would persuade a judge that the agreement has been universally and consistently fulfilled over the years, so as to give rise to that legitimate expectation, but the material which I have simply does not permit me to reach that conclusion."
The submissions on the appeal
"A declaration that 'is resident' in s.117(3) of the Mental Health Act 1983 (MHA) has the same (or substantially the same) meaning as 'is ordinarily resident' under section 24 of the National Assistance Act 1948 (NAA), so that a person placed by a local authority under s. 21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 of the NAA and s 117(3) MHA."
"a. responsibility for the social care of a mentally ill person will shift between local authorities, without any planning or any therapeutic purpose, on the day an individual is detained under s.3 MHA; this is precisely the time when consistent, coherent care is most needed to increase the chances of early discharge and to maintain existing community links;
b. prior to discharge and subsequently, the social care of a mentally ill person will be provided by a new social work team unfamiliar with the individual's history and family background;
c. aftercare is more likely to be provided out of the "home" borough, and away from the friends, family and support networks that are vital to re-integration and recovery;
d. there will be a strong financial incentive on local social services authorities to place people such as JM, who are likely at some point to be admitted under the MHA, outside their borough boundaries."
"Mitting J's analysis appears to rest on the proposition that a voluntary change of residence to local authority Y should be inferred, despite the fact that it is ousted expressly for NAA purposes and would seem to be extraordinary where local authority X was already under an existing and continuing liability to provide after care services
Against this background it is absurd that on the exercise of powers under s.2 or s.3 of the MHA, liability for planning and providing after-care services becomes uncertain and falls to be decided by reference to concepts of voluntariness at a previous date which find no place in the NAA scheme."
i) Mohammed v LBHF (already noted) in which it was held, in the context of the Housing Act 1996, that interim accommodation amounted to "normal residence", having regard to -"the statutory purpose of providing for people to stay in a borough with which they have established a local connection…" (per Lord Slynn para 20)
ii) Mark v Mark  1 AC 98, in which it was held that, in the context of the Divorce Proceedings Act 1973, it was inappropriate to treat the test of "habitual residence" as qualified by a requirement for it to be lawful, although it was accepted that in other contexts, for example in relation to statutory provisions conferring entitlement to benefits from the state, such a qualification might be implied (see para 36, per Lady Hale).
iii) The latter comment was relied on by the Court of Appeal in R (A) v Secretary of State for Health  1 WLR 279 para 54, when holding that, for the purpose of the National Health Services Act 2006, failed asylum seekers were not "ordinarily resident" in the United Kingdom.
"The third principle is that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that account." (p 475F).
This appears to be the only reference in the judgments to absence in hospital. Scott Baker J was right with respect not to treat it as direct authority in relation to the case before him. It is doubtful whether Lord Denning would have had in mind a period in hospital of more than five years.
LORD JUSTICE RIMER :
LORD JUSTICE SULLIVAN :