England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		15th July 2011

Mr Justice Langstaff:

1. The issue at the heart of this application for judicial review is whether either, and if so which, of two local authorities have the duty under section 117 of the Mental Health Act 1983 of providing after-care services upon the eventual release of a young woman now 23, known as SF, from compulsory detention for treatment under that Act. The application is in form a challenge by Sunderland to the position statement of the South Tyneside Council of 18 November 2010, which suggests that the answer to the question I have posed should be given as Sunderland. The relevant responsibilities of councils under the section has, according to the researches of counsel, directly been considered in only three cases: R v Ealing District Health Authority ex parte Fox [1993] 1 WLR 373, a decision of Otton J as he was ("Fox"); R v Mental Health Review Tribunal ex parte Hall [1999] 3 All ER 132, a decision of Scott Baker J as he was ("Hall"); and R (M) v London Borough of Hammersmith & Fulham and R (Hertfordshire County Council) v London Borough of Hammersmith & Fulham [2010] EWHC 562 (Admin), a decision of Mitting J ("M"), which on appeal became R (Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM (Interested Party) [2011] EWCA Civ 77 ("JM"). I should mention that the section was commented on in R v Manchester City Council ex parte Stennett [2002] AC 1127. That decision has nothing directly to offer save that it is authority for the proposition that section 117 is a freestanding provision and is not to be construed in the context of and so as to align with provisions under the National Assistance Act of 1948.
2. None of those authorities has considered a factual situation such as arises for consideration here.

The Facts

3. SF suffers from atypical Asperger's and a borderline personality disorder. She had been detained for treatment under section 3 of the Mental Health Act in 2007, and later discharged. Leeds City Council took responsibility for her after-care under the provisions of section 117. Leeds City Council is an Interested Party to these proceedings, as is SF. Neither has made any representations to the court; neither has been represented. In September 2009 SF moved to a college in Sunderland called ESPA, that is, Education and Services for People with Autism. This was a residential placement; she lived in Westfield Hall, a hall of residence. She was there for some three weeks. The parties agree that she was a resident there; they disagree as to her residence thereafter.
4. On 3 October 2009 SF attempted suicide. She was taken to Sunderland Royal Hospital, then to the Queen Elizabeth Hospital in Gateshead, and then in a matter of two or three days, the detail of which is not material, she was admitted to Rose Lodge, which is a purpose-built hospital in the South Tyneside area. The information I have in respect of Rose Lodge comes from the evidence of Colin William Ashworth in his statement of 18 March. He describes it as a newly opened, purpose-built hospital providing short-term treatment for patients with a learning disability. She absconded from Rose Lodge in early December 2009. She had not been under any formal compulsion to remain at Rose Lodge, though it is argued by Mr Mitford that compulsion was never far from the horizon. In consequence of her absconding and subsequent return at the end of a weekend to Rose Lodge, she was detained under compulsion at that hospital under section 2 of the 1983 Act; that is, for assessment. Thereafter, from 24 December 2009 she was detained for treatment under section 3 of that Act. On 2 June 2011, she moved from Rose Lodge to Linden House in Yorkshire, still detained under section 3.
5. When first admitted to Rose Lodge, she was admitted informally. The Code of Practice promulgated by the Department of Health in 2008 at paragraph 4.9 provides that:

"…informal admission is usually appropriate when a patient who has the capacity to do so consents to admission."

It mentions at paragraph 4.12:

"The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment..."

It is suggested to me by Mr Mitford on behalf of South Tyneside that the admission, informal as it was, was in accordance with guidance which sought to avoid compulsion where consent could be secured.

6. In a report to the First Tier Tribunal, subsequently compiled and containing a date of 21 December 2009 written by Michelle Smith, it is noted at paragraph 10 that SF began the hospital episode as an informal patient following a suicide attempt. It records that she went into hospital in October 2009 for an assessment, and had remained to date. The author appears to have either concluded or assumed that the hospital episode, as she termed it, was one and the same episode, even though it began informally and ended under detention at the time of her report.
7. In the first statement of Mr Ashworth, he noted that the nursing records indicated, as he summarised it, that following her admission, by which he meant her admission on 7 October, SF was unhappy about being at Rose Lodge, and wanted to leave. He drew attention to five particular incidents which he thought conveyed that message. In a note dated Saturday, 3 October 2009, but plainly written on the following morning, to which Mr Harrop-Griffiths in the course of his impressive submissions referred me, the following is said about the circumstances of the admission at the outset:

"[SF] was asked if she would stay in hospital, she agreed to this, Julie did say, there was every possibility she would have been sectioned if she had not volunteered to stay in hospital."

The thrust of this might suggest that that information was conveyed either expressly or by clear implication to SF, but it is to some extent ambiguous. Against those matters of fact, which are identified from the documents and statements, 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.

8. After her admission on this basis to Rose Lodge, she plainly no longer slept the night in her hall of residence at Westfield. On 23 October 2009 ESPA wrote a letter in which it indicated to the funding party:

"[SF] is clearly not able to benefit from or participate in the programme on offer at ESPA College and therefore we have no alternative at present but to terminate her placement.

We have agreed to be involved still with [SF] and a representative is attending CPA meetings with a view to contributing to plans for her transition."

The parties agree that she was legally capable of giving consent, and of having and expressing lucid views.

9. Finally in respect of the facts, I observe that in the report which Michelle Smith prepared, she mentioned, and Mr Harrop-Griffiths relies upon, that:

"She remains in hospital because she does not have anywhere else to go."

That is, however, written at a time when SF was in compulsory detention, and therefore it does not seem to me appropriate to give it significant weight.

The Law

10. Section 117 of the Mental Health Act 1983 is headed "After-care". So far as material to this application, it provides as follows:

"(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, or transferred to a hospital in pursuance of …

(2) It shall be the duty of the [Primary Care Trust or] [Local Health Board] 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 or] [Local Health Board] 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."

11. The question in this appeal concerns the interpretation and application to the facts of subsection (3). The effect of Fox as summarised in Hall was that Otton J decided that a district health authority was under a mandatory duty under section 117 to provide after-care services for any person to whom the section applied, and was therefore under a duty to make practical arrangements for after-care prior to a patient's discharge from hospital, where such arrangements were required by a mental health review tribunal in order to enable a patient to be conditionally discharged from the hospital; see page 141 of the report of Hall. At pages 142 to 143, Scott Baker J noted that the view of Otton J was that if effective after-care services are to be provided, it is necessary for them to be planned and arranged before the patient leaves hospital. He accepted the proposition that an authority's duty to provide after-care services includes a duty to set up the arrangements that will be required on discharge; it is not a duty that arises for the first time at the moment of discharge. He then asked by which authority the section 117 duty was owed. He said this:

"39. Section 117(3) defines the Health Authority and the Social Services Authority as those for the area in which the Applicant is resident or to which he is sent on discharge by the hospital. The definition must, of course, be read in the context of the Act as a whole and in particular Section 117(1) and (2). What Parliament in my judgment had in mind was a workable and effective system to provide aftercare in the community for patients released from hospital.

40. The word "or" in sub-section (3) clearly envisages an alternative so that there is always some authority that will be responsible when a patient is discharged; if not that of his residence that of the place to which he is sent. One or the other authority is responsible but not both; otherwise there would be a recipe for disaster with the prospect of endless disagreements and failures to make arrangements. Section 117 does not provide for multi social services department or health authority responsibility. The words "or to whom he is sent on discharge by the Tribunal" are included simply to cater for the situation where a patient does not have a current place of residence. The sub-section does not mean that a placing authority where the patient resides suddenly ceases to be "the local social services authority" if on discharge the Applicant is sent to a different authority."

12. In the case of Hall, the facts were briefly that in 1991 Hall had been found not guilty of manslaughter by reason of insanity. He was detained under sections 37 and 41 of the 1983 Act, and therefore section 117 applied. By 1999 he was still detained; this was therefore over seven years later, not even including any time that may have been spent in detention on remand, after the time when he had last occupied any place of residence in Torfaen. It was, however, not suggested to Scott Baker J that the applicant there was not resident in Torfaen. He observed at page 143:

"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 e.g. Fox -v- Stirk [1970] 2 QB 463. 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."

At page 153 of the report, in the fourth last paragraph of his judgment, Scott Baker J, as he was, said:

"95. For the purpose of Section 117 of the Mental Health Act 1983 the relevant health and social services authorities are those for which the patient is resident i.e. ordinarily resident at the time that he is detained, i.e. in this case Torfaen and Gwent."

The judge thus did not need in that case to consider whether or not the applicant was resident at Torfaen, except to consider, as he did, whether he might be regarded as a resident at and in Ashworth Hospital, where he had after all been for over seven years. But as was later to be explained by Carnwath LJ in JM (see paragraphs 24 and 48), it did not make sense that the area of Ashworth Hospital had any relevance to the responsibility for after-care. And as I have noted, he relied upon the principle which he took from Fox v Stirk [1970] 2 QB 463, to which I shall return.

13. Before turning to consider the remaining authority, both at first instance before Mitting J, that of M, and on appeal that of JM, I should in order to make sense of the observations and decisions in those cases refer to such authorities as there are in the House of Lords, and insofar as relevant in the Court of Appeal, as to the meaning to be given to the word "residence". The words "ordinary residence" were considered by the House of Lords in two tax cases reported in 1928. In each, the House saw itself as seeking the natural and ordinary meaning of the words. In Levene v Inland Revenue Commissioners [1928] QC 217 at 225, Viscount Cave, the Lord Chancellor, said:

"I think that [ordinary residence] connotes residence in a place with some degree of continuity and apart from accidental or temporary absences."

In IRC v Lysaght [1928] AC 234 at 243, Viscount Sumner said that he thought the converse to "ordinarily" was "extraordinarily", and:

"...that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary.'"

The view of Lord Warrington of Clyffe, given in Levene at 232, was that the word "resident" had no technical or special meaning for the purposes of the Income Tax Act. It was impossible to restrict its connotation to its duration. He mentioned:

"A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered."

14. When those observations came for consideration in the case of R v London Borough of Barnet ex parte Shah [1983] 2 AC 309, Lord Scarman, with whom Lords Fraser, Lowry, Roskill and Brandon agreed, considered those authorities, and concluded as follows:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that '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 of long duration."

He further observed at page 344, the following page, that there were two (and no more than two) respects in which the mind of the propositus, as he called it, was important in determining ordinary residence:

"The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.

And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the 'propositus' intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

15. In the subsequent case of Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57, [2002] 1 AC 547, the House was considering the case of an applicant who was accommodated under the terms of the Housing (Homeless Persons) Act, which had become the Housing Act 1996, in temporary accommodation. The duty to accommodate depended upon a local connection being established; under statute, that was to be established by any one of a number of factual tests, of which "normally resident" was one. The question which arose was whether the man when admitted to interim accommodation in Hammersmith was thereby normally resident there; he had no other residence. At paragraph 18, page 553 of the Appeal Cases report, Lord Slynn said this:

"It is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. 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. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter" but it is also where he 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. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such."




16. None of those authorities, save the observation of Viscount Cave at page 225 in Levene, directly deals with the question which arises where the propositus is resident in a particular place, but circumstances arise in which he has to go elsewhere by way of departure from what would otherwise be the regular order of his life for the time being. Posing the question in those terms almost answers it, given the way in which Lord Scarman posed the applicable test derived from the authorities. But there is further assistance, which is given by the Court of Appeal and was referred to by Scott Baker J in the case of Hall. That is the authority of Fox v Stirk [1970] 2 QB 463. There Lord Denning MR specifically referred to a further observation of Viscount Cave LC at page 222 in Levene:

"In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure."

17. I shall say more about Fox and Stirk in the course of this judgment, but I turn now to the case of M. The boroughs of Sutton and of Hammersmith and Fulham disputed which of the two was responsible for the after-care of someone who had enjoyed a council flat in Hammersmith for some years as a tenant. Following three months in hospital after a car crash, he was accommodated in a residential care home in Hammersmith. He was transferred to Sutton in July 2007. He went to a residential care home there known as Ronau House. Having gone there, he terminated the tenancy which he had had with Hammersmith and Fulham; that was a voluntary, conscious act. In January 2008, he was compulsorily detained in Sutton Hospital under section 2 of the Mental Health Act for assessment; a little beyond the 28 days which the statute permits for his detention, he was released again to Ronau House, but three months later he was back in Sutton Hospital again from April 2008. He was then discharged.
18. In summary, the argument between the two local authorities appears to have been that there was a difference in meaning between the words "resident" and "ordinarily resident"; if that argument were rejected, it was argued that section 24(5) of the 1948 National Assistance Act might affect the interpretation of section 117. It is to be noted that, as I understand it, Hammersmith and Fulham had under the 1948 legislation been responsible for discharging the costs of the accommodation of M whilst in Sutton at Ronau House. Mitting J considered the authorities in the House of Lords which I have just outlined, paragraph 21 to 24 of his judgment. He concluded at paragraph 25 as follows:

"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."

His decision that Sutton was financially responsible for the costs of accommodating and on his discharge from Sutton Hospital was subject to appeal on its principles in JM.

19. The Court of Appeal thought itself bound by the case of Stennett to hold that section 117 was a freestanding provision. It considered the case of Hall. No party before the Court of Appeal criticised that decision. Carnwath LJ, with whose judgment the other members of the court agreed, observed in respect of the passage towards the end of his judgment as follows at paragraph 24:

"In reading that part of the judgment, it is important to bear in mind that there was no argument on the issue of residence, and no indication that the judge was referred specifically to the cases on "residence" and "ordinary residence" referred to by Mitting J (see below). I would not therefore attach great significance to the judge's apparent assimilation of those two concepts. Nonetheless, it is common ground before us, and I am happy to accept, that in deciding where a patient 'is resident' the period of actual detention under the 1983 Act is to be disregarded. Accordingly, he was rightly found to be resident in Torfaen, even though he had not in fact lived there for several years, and, by virtue of the tribunal's order, might never be permitted to return there."

20. Although he had expressed his contentment with the proposition that the period of detention was to be ignored, the argument presented before him made it necessary to return in his discussion of those submissions at paragraph 48 to set out in greater detail the reasons for that conclusion. In paragraph 48 he noted that it was necessary to consider why the period under section 3 was ignored:

"This was treated as common ground, and therefore not considered in detail, in ex p Hall. Indeed there was little reason to regard the area of Ashworth Hospital, where he happened to be detained, as of any relevance to responsibility for his after-care. Scott Baker J referred to Fox v Stirk [1970] 2 QB 463, as offering at least illustrative support for the proposition that a person does not cease to be resident in a particular area 'by reason only of his admission to hospital' (see para 23 above).

49. The issue in Fox v Stirk was whether, for the purpose of qualification to vote, students were 'resident' in the areas of their colleges, even though they were only there in term time. Having referred to the OED definition adopted in Levene v IRC and to the statutory context, Lord Denning MR derived three principles, including:

'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.'

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."

He considered in paragraph 50 voluntariness, and conflicting authorities as to that, and at paragraph 51 said:

"The present context seems to me to point to an interpretation of "residence" which excludes the period of compulsory detention under the section. It can be seen as implicit in section 117(3) that the area of "residence" is something distinct from the place of detention. "The hospital in which he [is] detained" is referred to separately in the same provision, for the purpose of defining the fall-back position, but not as relevant to the primary criterion. Since there is no suggestion that the hospital of detention should itself be responsible for his after-care, there is no reason for its area to define responsibility. That to my mind provides a legally acceptable explanation of the interpretation in ex p Hall, based on the wording of the section itself."

The Argument

21. Mr Harrop-Griffiths, to whose arguments I have already paid tribute, placed heavy reliance upon the words of Lord Slynn in the Mohamed case. He emphasised that, here, SF had lost her accommodation in Sunderland; she had nowhere else to go other than Rose Lodge. If one ignored the compulsory period of detention, there was still the period of time from October until 10 December 2009; during that period, SF lived and slept, except when absconding, at Rose Lodge. He drew attention to the fact that she had, it would appear, consented to being admitted to hospital. It was an informal admission, but that implies that the individual concerned is willing to receive hospital treatment. He emphasised that the word in the statute was "resident", and not "ordinarily resident" or "normally resident".
22. Mr Mitford for South Tyneside argued that the determination of the issue was one of fact. The stay by SF could not be said to be truly voluntary; behind it, there lay the threat of compulsion. The circumstances were such that hospital treatment was necessary; to be in hospital does not normally cause a break in residence. He relied on the observations of Lord Denning MR in Fox v Stirk. He drew attention to the test propounded by Lord Scarman: there were aspects of that which the residence of SF, if such that it might be colloquially termed, in Rose Lodge could not satisfy. It was not truly voluntary; it was not for settled purposes; it was not part of the regular order of her life for the time being.

Discussion

23. From the law, I draw these propositions.

(1) The purpose of section 117 of the Mental Health Act is such that it is uncontroversial that the section must be construed in the context of Parliament's presumed intention to establish "a workable and effective system to provide after-care in the community for patients released from hospital" (see Fox, Hall and JM at paragraph 22).

(2) That necessitates that there is only one residence for these purposes. The interpretation excludes a dual residence, as this would be a recipe for disaster and muddle (see Hall).

(3) The word "resident" is to be given its ordinary meaning. It is not a term of legal art. But it is, in its ordinary meaning, subject to the statutory context - as the cases throughout and in particular Lord Slynn in the passage I have cited from Mohamed have emphasised.

(4) The wording and the context here preclude the hospital in which a patient is compulsorily detained from itself being the place of residence (JM, paragraph 51).

(5) The ordinary meaning suggests that in this context there is, as Mitting J found, no material difference between "resident", "ordinarily resident" and "normally resident"; the Court of Appeal in JM did not say so in terms, but it was considering an appeal from Mitting J, who had in part based his decision upon that proposition. At paragraph 52 in JM, Carnwath LJ observed that the judge's reasoning was correct. That was a general proposition; it was not specifically directed to the proposition I have just set out. But the fact that there was no express disagreement nor express qualification, and the fact that the argument of the appellants which sought effectively to rerun the arguments which had failed before Mitting J were rejected, and that that argument had sought to emphasise the distinction between those phrases leads me to conclude that Mitting J's statement was not only something which is of persuasive force but has the implicit approval of the Court of Appeal.

(6) There is flexibility adherent in the expression "is resident" (see paragraph 47 of JM). This means that the application of those words, and the test which it involves, is not simply to answered by asking whether an individual has involuntarily lost his legal entitlement to return to a place in which he had previously been living (though I for myself would not exclude this as a factor to take into account in an overall evaluation of the facts) (see paragraph 47 of JM). On the facts of Hall, time had gone past to such an extent that it seems practically unlikely that Hall would have had accommodation available for him in Torfaen or Gwent, and no argument put before the court in that case or subsequently has focused upon that.

(7) The determination of residence is a question of fact. All the factors are to be weighed (per Karminsky LJ in Fox v Stirk). But the approach is to apply to those facts the distillation of the authorities to which Lord Scarman came in Barnet v Shah: ordinary residence 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 or short or long duration.

(8) In determining what are those settled purposes, and what is part of the regular order of life for the time being, regard should be had to the purpose and other circumstances of a person's presence or absence from the address. The example which Lord Denning MR gave in Fox v Stirk at page 475 of what he termed the "third principle" derived from his approach, which was exactly that, that regard had to be had to the purpose and other circumstances of presence at or absence from an address. I comment that I would accept that a period of time in hospital, as where a propositus has suffered an accident, does not make one cease to be resident where one has been resident before. But the guiding principle is that which I have mentioned, and I would hold that temporary presence is not simply a question of duration, but is to be defined by what might be termed qualitative considerations: the purpose of the stay, the extent to which it disturbs the normal pattern and order of life, or is likely to end it, and the like. A holiday, or a stay in hospital, or being away from one's original residence on business, may sometimes have features which suggest that the individual concerned is no longer resident where he was before. An overall evaluation is called for, always bearing in mind here that the purpose of the provision, section 117(3), which gives rise to this inquiry is to identify the local authority upon which the duties are to be imposed and, generally, imposed during a time of compulsory detention, so that provision may be made for after-care thereafter.

(9) I thus accept that a person is not the less resident because from time to time he leaves a settled or usual abode for the purpose of business or pleasure. It is plain that "business" or "pleasure" are examples of reasons why someone may leave a settled or usual abode; "hospital" might be added, as it was by Lord Denning MR. (10) Preference for another place, dislike of one's accommodation or its poverty as a place of residence are irrelevant, at least where a person has no other accommodation available at the time (Lord Slynn, Mohamed, paragraph 18). It was accepted in argument that a person may be resident within the meaning of the cases even though he has only been at a place for a couple of hours, and even though he may never have laid his head on the pillow in the bed there, as for instance where someone sells their present house in order to buy another; on the day of completion, as he moves in, he is subject to a serious accident which detains him in hospital. In the words of Lord Slynn in Mohamed no doubt was cast upon the distillation of principle to which Lord Scarman came in Barnet v Shah. The context in which Lord Slynn said what he did was that there was no other residence available, and his observation was expressly subject to noting the statutory context in which the inquiry arose.

24. I regard it as important here that the purpose of the inquiry here is to identify which local authority has the duty, unless the case fits, which it only unusually will, in the category of those where an individual has no residence - examples might be the immigrant newly in the country, the traveller, and the like. In my view, Mr Mitford puts the case too high in suggesting that here the whole of the period of time in hospital should be treated as being under compulsion. It was not, as I have already concluded, all under compulsion; but that does not seem to me ultimately to determine the issue. I must look at the way in which to apply the distillation, as I have called it, of Lord Scarman. 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 a 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, though legally they were not present under compulsion.
25. Here, SF was not compelled, save by the force of circumstances, to be at Rose Lodge; but it is part of the facts and circumstances of the whole case that there was force in the circumstances surrounding her situation. Secondly, I take account of the nature of Rose Lodge, intended to be short-term accommodation, and indeed from its description not ideally suited to her since she did not have a formal learning disability.
26. I shrink, in the context of section 117(3) from making the decision turn critically upon whether SF had "lost" her previous accommodation, in the sense that her stay away had continued for so long and in such circumstances that she was no longer to be entitled legally to return there. This was not a voluntary surrender, as had been the case in M. It was not the case when she entered Rose Lodge that she had no right of return. The idea that she could be for a period of time in Rose Lodge, and not then under compulsion, be regarded as resident in Sunderland and then by the actions of a third party become no longer resident in Sunderland, without any material change in her personal circumstances or her own volition, does not seem to me a sensible answer to the question as to which local authority should be identified as required to provide for her after-care.
27. In applying the words of Lord Scarman from Barnet v Shah, I ask whether the evidence shows me here that SF was present in Rose Lodge for a settled purpose; I cannot sensibly so conclude. Was it part of the regular order of her life for the time being? I do not think it can be said to be. It seems to me, therefore, that the test of residence which that distillation implies is simply not satisfied by SF's presence in Rose Lodge; she was not, here, to be equated with the homeless person of Mohamed. I take into account the purposes of the statute, and the flexibility inherent in the word "resident". I was impressed by an example which Mr Mitford gave in argument, in which he suggested that if one were in hospital for, for instance, treatment following an accident, and having been there for some weeks so mentally overcome by the after-effects of the accident as to require thereafter to be compulsorily detained in the same place, it could not sensibly be said that the period of admission prior to detention made the person resident in the hospital, as opposed to resident in the place from which they had come, and in which it was accepted that person was resident previously.
28. The purpose of the Act being to impose a duty upon a local authority, and the purpose of subsection (3) being to identify that local authority by means of what should, in most cases, be a simple test to apply, so that certainty may be given and so that the object of facilitating the treatment of a mental health patient is facilitated, is likely to be defeated by too easily regarding a stay as creating a state of residency in the hospital sufficient to impose that duty on the local authority for the place of such a stay, when the stay of its very nature would be expected to temporary, is unwished for, is imposed by the force of circumstances, breaks the regular order of one's life, and is for purposes which cannot be regarded as settled, where accommodation to provide for that regular order was available at least at the outset of the stay.
29. I therefore conclude that in this case, Sunderland and not South Tyneside is the local authority which owes the duty to SF. I am gratified to be able to come to this conclusion, not least because to hold otherwise would mean that the local authority in which the lodge is situated would be responsible; and although there may be cases in which that might be the appropriate result, it must generally be desirable, as it would seem Carnwath LJ thought almost beyond argument in JM, that the purpose is achieved by not coming to that result. I have considered whether the alternative, that SF was in truth without any residence, is one which is a sensible and appropriate conclusion; I have rejected it. Neither party has urged me to consider it, although it is certainly a possibility in the argument of Mr Harrop-Griffiths. It seems to me that it does not facilitate the object of the statute to find that someone is of no residence. The facts may compel it in some cases, but one should not strive to reach that result where there is another which is sensibly tenable on the evidence before the court: so is the case here.
30. For those reasons, I refuse this application.

MR HARROP-GRIFFITHS: My Lord, can I raise one matter concerning your Lordship's judgment?

MR JUSTICE LANGSTAFF: Yes.

MR HARROP-GRIFFITHS: When your Lordship was dealing with those cases that have featured section 117, my note of what you said was that the section has directly been considered in three cases, and then you referred to Fox, Hall and JM.

MR JUSTICE LANGSTAFF: M and JM.

MR HARROP-GRIFFITHS: Yes, well M and JM, yes.

MR JUSTICE LANGSTAFF: And then I mentioned --

MR HARROP-GRIFFITHS: And then you mentioned Stennett. What I am conscious of is in fact that it has been -- well, in fact it was directly considered in Stennett, and perhaps I could suggest that your Lordship was -- perhaps another way of putting it would be to say that the responsibility under section 117 has only been directly considered in fact in two cases, in Hall and JM.

MR JUSTICE LANGSTAFF: Yes.

MR HARROP-GRIFFITHS: Fox did not concern it, and no other case that we are aware of has considered the point, and looking again through the notes of Professor Jones in his manual, there are at least two other cases, one involving Doncaster --

MR JUSTICE LANGSTAFF: Right.

MR HARROP-GRIFFITHS: -- where section 117 has been looked at for other purposes.

MR JUSTICE LANGSTAFF: Thank you very much for that.

MR HARROP-GRIFFITHS: Yes.

MR JUSTICE LANGSTAFF: It is plainly a matter of importance, because of there being so few cases in the area, this may get reported, I do not know, that that be put right. This discussion will be on the transcript when it comes back to me for revision, I imagine, and I shall make sure that it is reflected in a change to the wording.

MR HARROP-GRIFFITHS: Yes. I could also suggest that if I could send you a copy -- well, maybe that is going too far, it is simply the fact that there are other cases.

MR JUSTICE LANGSTAFF: I thought I was faithfully reflecting the argument, plainly I have not done, and I am pleased to be corrected on that.

MR HARROP-GRIFFITHS: Yes. Well, I will leave it at that so far as that point is concerned. There is no other matter that I seek to raise in terms of the detail of what your Lordship said, apart from I think that your Lordship referred to the Housing Act but did not give the date of it, it was 1996.

MR JUSTICE LANGSTAFF: No, but I had in mind actually the -- because I began to talk about the Housing (Homeless Persons) Act, which became the Housing Act in 1996.

MR HARROP-GRIFFITHS: Yes.

MR JUSTICE LANGSTAFF: In what are very familiar provisions. But yes, and that also I think shall tidy up, along with other infelicities; there is a very long sentence at the end of the judgment which I shall try and break down if I can to be more meaningful.

MR HARROP-GRIFFITHS: In terms of other matters, there was one that I have discussed with my learned friend at the outset before your Lordship came in, and that is that in fact we do not have an order for anonymity so far as SF is concerned.

MR JUSTICE LANGSTAFF: Yes, we had better have that, have we not?

MR HARROP-GRIFFITHS: And would your Lordship make an order to that effect, because it clearly should --

MR JUSTICE LANGSTAFF: Well, it is plain, yes.

MR HARROP-GRIFFITHS: As your Lordship knows, as far as costs are concerned the parties agree that there are no orders as to costs. I do not know if my learned friend seeks anything by way of a formal order?

MR MITFORD: No, each party has agreed to bear their own costs, and therefore I do not request an order of any sort.

MR JUSTICE LANGSTAFF: Is it necessary for any declaration to that effect?

MR HARROP-GRIFFITHS: Well, that is what I meant, in fact, I should be clearer.

MR JUSTICE LANGSTAFF: That is what I thought you meant.

MR HARROP-GRIFFITHS: I do not know if he is seeking a declaration or -- I am happy to leave it as it is.

Mr Mitford: I am content.

MR JUSTICE LANGSTAFF: So I am in your hands; I will grant a declaration if there is any purpose in it, but if you tell me that you are agreed between yourselves to follow my decision whatever it happened to be, then that is sufficient.

MR HARROP-GRIFFITHS: Then I think one final matter, and that is an application for permission to appeal. As your Lordship will see, I do not have anybody sitting behind me, and I do not know how this will be taken by my clients, but it seems appropriate that I should make the application now, if I may, to your Lordship. First of all, so far as the principal point I would put forward, it is this: your Lordship has dealt with my argument as to whether "resident" means "ordinary resident" – or it can be equated with ordinary residence or normal residence, and your Lordship will recall from yesterday that my argument was to the effect that if one looks at what Carnwath LJ says towards the end of his judgment at paragraph -- and perhaps I ought to be precise about this. In paragraph 51, he is saying there at the opening two sentences:

"The present context seems to me to point to an interpretation of "residence" which excludes the period of compulsory detention…"

And then he goes on to analyse subsection (3) to show why that is so. My argument would therefore be -- I am not seeking to repeat my argument, but I would say that there is a realistic prospect of success in persuading the Court of Appeal that residence is different to ordinary residence and normal residence. Bearing in mind, of course, your Lordship's point in the judgment that it is found by your Lordship that the court had accepted what Mitting J had said about the three can be allied together, and the point that I made yesterday about paragraph 52, where that is expressed to some extent is that arguably does not relate to the point about residence; it relates to the point about section 24(5) of the 1948 Act. So that would be the focus for any appeal if your Lordship is minded to grant permission.

Perhaps I could also say that because we have a dearth of authority, then of course it may be that your Lordship would consider the second limb in terms of a test for permission as to whether there is an important here which should be taken up, albeit it goes up to the Court of Appeal quite soon after they have already looked at it.

MR JUSTICE LANGSTAFF: Yes, as to the first, it seems to me that the approach was that if one takes the words in their resident, ordinarily resident, normally resident in the context of the Mental Health Act, there is no essential difference between them. That ordinary meaning must yield to any extent necessary to the context. The context here per Carnwath LJ is that residence cannot be a period of compulsory detention because of the wording of the Act itself. But that applies whether one is looking at a concept of ordinary residence, normal residence or residence, and it does not depend upon the difference between those shades of meaning. So for that reason, I do not see that there is any force in that argument.

As to the second, there is a dearth of authority, but there has been very little since 1999, when Scott Baker J said what he said in Hall. There has recently been the Court of Appeal looking at it; this, of its nature a factual inquiry, is I would have thought unlikely often to arise. You may perhaps say that given the guidance from the Department of Health on informal admission, it may arise more in the future. I understand that point; I think that would be one that the Court of Appeal would consider for itself whether it should look at.

MR HARROP-GRIFFITHS: And could I -- there was one further point I wanted to make, but forgive me, if I could make that now, and that is an alternative as to this point about whether there is scope here for finding in the alternative that she was not resident in Sunderland at the material time, which would be the date of detention. As your Lordship said, the possibility of that was raised in my argument, and in my submission there is so far as that point is concerned, this issue about whether something could be said to be a resident for the purpose of the section, having nowhere else to go, as at the time of detention, and whether we take that as the 10 December or 24 December, some way away from when she received, or somebody received notice that her placement had ended. Clearly, your Lordship has dealt with that.

MR JUSTICE LANGSTAFF: Yes.

MR HARROP-GRIFFITHS: But again I put that forward as a matter that I would say has a realistic prospect of success. So far as general importance, I do not think it can rely on that limb in that particular instance.

MR JUSTICE LANGSTAFF: Yes. I think the judgment deals satisfactorily with that, I am not convinced that it gives you any reasonable prospect of success here. If you want time to consider with your clients, as they are not here for obvious reasons, of course, then you may have an extension of time within which to submit the application to the Court of Appeal until 14 days after receipt of the perfected judgment.

MR HARROP-GRIFFITHS: I am grateful.

MR JUSTICE LANGSTAFF: Thank you.