R (Hertfordshire CC) v LB Hammersmith and Fulham  EWCA Civ 77
The appellant sought: 'A declaration that "is resident" in s117(3) Mental Health Act 1983 has the same (or substantially the same) meaning as "is ordinarily resident" under s24 National Assistance Act 1948, so that a person placed by a local authority under s21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 NAA and s117(3) MHA.' The court refused to grant the declaration as: (1) Parliament must have deliberately chosen a different formula for s117; (2) s117 was intended to be a free-standing provision, not dependent on the 1948 Act; (3) there was no legitimate way to interpret 'resident' as excluding a placement under s21. The court noted that the decision is in line with recent government guidance, and that the Law Commission's current project provides a much better forum for considering and remedying any defects in the present law.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
LOCAL GOVERNMENT — Community care services — Discharged mental patients — Allocation between local authorities of responsibility to pay for provision of after-care accommodation — Whether detained patient “resident” at place of detention — National Assistance Act 1948, s 24 (as amended by Local Government Act 1972, s 195(6), Sch 23, para 2(2)) — Mental Health Act 1983, s 117(2(3) (as amended by National Health Service Reform and Health Care Professions Act 2002, s 2(5), Sch 2, para 47 and Health Authorities Act 1995, ss 2(1), 9(3), Sch 1, para 107(8)(b))
A mental patient who was compulsorily detained under the Mental Health Act 1983 was not thereby to be treated as “resident” in the local authority within whose area he was detained. On a proper construction of section 117(3) of the 1983 Act the patient’s “residence” was distinct from his place of detention. Section 117 of the 1983 Act was the appropriate section, rather than section 21 of the National Assistance Act 1948, to determine which authority should have the responsibility of paying for the patient’s after-care accommodation.
The Court of Appeal so held dismissing an appeal by the claimant local authority, Hertfordshire County Council, from a decision of Mitting J in the Administrative Court on 3 March 2010 refusing the claimant’s claim for a declaration that “is resident” in section 117(3) of the Mental Health Act 1983 had the same (or substantially the same) meaning as “is ordinarily resident” under section 24 of the National Assistance Act 1948, so that a person placed by a local authority under section 21 of the 1948 Act in the area of another local authority would remain ordinarily resident in the area of the placing authority for the purposes of Part 3 of the 1948 Act and section 117(3) of the 1983 Act. The appeal was contested by the defendant, Hammersmith and Fulham London Borough Council, and the patient, JM, was an interested party.
The National Assistance Act 1948 provides by section 24, as amended: “(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.”
The Mental Health Act 1983 provides by section 117, as amended: “(1) This section applies to [mental patients] who … cease to be detained and … leave hospital. (2) It shall be the duty of the Primary Care Trust … and of the local social services authority to provide, … after-care services for any person to whom this section applies ... (3) In this section ‘the Primary Care Trust’ … means the Primary Care Trust …, and ‘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.”
CARNWATH LJ said that the patient had significant cognitive impairment and suffered from Korsakoff's psychosis. He had lived in the Hammersmith and Fulham area from 2001 to 2007, when he was placed in a hostel in the London Borough of Sutton where he was unhappy. In April 2008 he was compulsorily detained in Sutton Hospital and was discharged in March 2009 to a placement in the London Borough of Ealing. Sutton had not taken part in the instant proceedings, but if Hertfordshire succeeded in obtaining the declaration it had originally sought in proceedings involving another mental patient, Sutton might be able to transfer financial responsibility for the patient’s care to Hammersmith and Fulham. It was not easy to see why Parliament had not simply followed the precedent of the 1948 Act when enacting the duty under section 117. The 1948 Act precedent must have been well-known to those involved in drafting the new Bill, and the court had to proceed on the basis that Parliament deliberately chose a different formula which, by implication, accepted the possibility of responsibility changing over the period of detention, including the potential impact on continuity of patient care. Consequently the declaration would be refused and the appeal dismissed.
SULLIVAN and RIMER LJJ agreed.
Regina (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council
B;  WLR (D) 47
CA: Carnwath, Rimer, Sullivan LJJ: 15 February 2011
Appearances: Patrick Green and Kathleen Donnelly (instructed by Solicitor, Hertfordshire County Council) for the claimant; Fenella Morris (instructed by Solicitor, Hammersmith and Fulham London Borough Council) for the defendant; Nathalie Lieven QC and Toby Fisher (instructed by John D Sellars & Co, Sutton) for the interested party.
Reported by: John Spencer, Barrister.
© 2011. The Incorporated Council of Law Reporting for England and Wales.
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Before: Carnwath, Rimer, Sullivan LJJ
Patrick Green & Kathleen Donnelly (instructed by Hertfordshire County Council) for the Appellant
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)
 All ER (D) 164 (Feb)