Hertfordshire County Council, R (on the application of) v London Borough of Hammersmith & Fulham (Rev 1) [2011] EWCA Civ 77

Case No C1/2010/0690[2011] EWCA Civ 77IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO/126/2009 CO/3390/2009
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/02/2011
Before
LORD JUSTICE CARNWATHLORD JUSTICE RIMERLORD JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF HERTFORDSHIRE COUNTY COUNCILAppellantLONDON BOROUGH OF HAMMERSMITH & FULHAMRespondentJMInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Patrick Green & Kathleen Donnelly (instructed by Hertfordshire County Council) for AppellantFenella Morris (instructed by London Borough of Hammersmith & Fulham) for RespondentNathalie Lieven QC & Toby Fisher - Interveners for Interested Party (instructed by John D Sellars & Co, Solicitors)Hearing Hearing dates : Tuesday 18th January, 2011
JudgmentLORD JUSTICE CARNWATH :The appeal
[1]The question raised by this appeal is the allocation, as between social services authorities, of responsibility for meeting the care needs of a patient who is discharged into the community following a period of detention under section 3 of the Mental Health Act 1983.[2]The present dispute is nominally between Hertfordshire County Council (HCC), as appellant, and the London Borough of Hammersmith and Fulham (LBHF), as respondent. However, the procedural background is more complicated. The dispute between these two authorities concerned responsibility for meeting the aftercare needs of a patient, MW. Although, after the issue of proceedings LBHF accepted responsibility on the facts of the case, HCC did not agree to discontinuance of the proceedings, because it considered the issue to be of more general importance. Permission for judicial review was granted on 11 August 2009. Meanwhile, on 25th March 2009, in another case involving LBHF, permission had been granted for judicial review, this time on the application of the patient (JM). This related to its decision that the London Borough of Sutton (LBS) was responsible for his aftercare.[3]On 3rd March 2010 Mitting J dismissed both applications. HCC appeals with permission granted by Jackson LJ on 13th May 2010. Neither LBS nor JM has appealed against the decision in his case. However, JM has been granted permission to intervene in HCC’s appeal. He himself has now been placed in after-care accommodation in the London Borough of Ealing, which he and the authorities accept as satisfactory for his needs. Accordingly, he has no immediate interest in the outcome of the case, although of course circumstances may change. The only live issue therefore, at least at present, is responsibility as between LBHF and LBS for payment for that accommodation. Although LBS has not taken any part in the appeal, it may be that, if HCC is successful in its appeal, it will be able to transfer financial responsibility for JM’s continuing care to LBHF. Whether that is so (in the face of Mitting J’s unchallenged judgment against it) has not been explored in argument, and I express no view on the point.[4]HCC has been represented before us by Mr Green and Miss Donnelly, and LBHF by Miss Morris. JM, as intervener has been represented by Miss Lieven QC and Mr Fisher, who have generally supported HCC’s submissions.[5]Against this unusual background, we have been asked to consider the facts of JM’s case as illustrative of the problem, even though the case is not strictly before us on the appeal. No substantive relief is sought by HCC, other than a declaration designed to settle the legal position for the future.

The facts – JM’s case

[6]Between 1991 and 2006 JM lived in the area of LBHF in a one-bedroomed council flat. He suffers from significant cognitive impairment and a disorder diagnosed as Korsakoff's psychosis. In December 2006, he was involved in a serious road traffic accident and was hospitalised for three months. On discharge, he was provided with accommodation in a residential care home still in the area of LBHF, and later transferred to a hostel. He was involved in two more road accidents while staying there.[7]In July 2007, following an assessment of his mental health, it was decided that his needs could no longer be sustained in a community setting. On 31st July 2007, he was transferred to Roanu House in LBS. Eight days after his transfer to Roanu House, he signed a notice terminating his tenancy with LBHF.[8]The circumstances of that action were the subject of some dispute before us. The judge described that action as taken “on the advice and with the support of his family”, and commented:
“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.[9]JM stayed at Roanu House until 22nd January 2008, but appears never to have been happy there. In September 2007, he returned to Hammersmith and slept rough for a period before being returned to Roanu House by the police. On 22nd January 2008, JM was admitted to Sutton Hospital, a psychiatric hospital, for assessment under section 2 of the Mental Health Act 1983. He remained there until 29th February 2008. Although it was concluded that Roanu House was not a suitable placement, he was returned there, and stayed until 10th April 2008, when he was readmitted to Sutton Hospital for treatment, this time being compulsorily detained under section 3 of the 1983 Act. The initial maximum period of compulsory detention under that section was six months, but with power to renew following further assessment (s 20), subject to any appeal to the Mental Health Appeal Tribunal.[10]By 28th October 2008, his consultant psychiatrists considered that he was reaching a stage when his discharge from hospital could take place. However, finding a suitable placement continued to cause problems, which were aggravated by a dispute over responsibility. It seems that until August 2008 LBHF had continued to accept responsibility for him, but that about that time they changed their position. A report to the Mental Health Review Tribunal dated 30th September 2008 noted that his LBHF social workers had discharged him from their caseload, and that the placement at Roanu House had been terminated. After a hearing on 21st November 2008, the tribunal commented that they had been unable to consider the possible option of placement in the community because it was unclear which authority was responsible for providing the necessary information.[11]The tribunal proceedings were adjourned on a number of occasions. On 26th February 2009 the tribunal determined that although there had been considerable improvement in his condition his detention in hospital should continue, until a suitable placement could be found in a less restrictive setting. It was noted that if not detained under the section he would be likely to abscond in view of – “his continuously expressed wish to return to Hammersmith and Fulham where he has friends and feels in familiar surroundings”.[12]On 23rd March 2009, he was discharged from Sutton Hospital to Kenilworth House in the London Borough of Ealing. As already noted, that placement has been successful.

Statutory framework

[13]The issue turns on the relationship and contrast between the provisions for allocation of responsibility under two statutory provisions: National Assistance Act 1948 section 21, and Mental Health Act 1983 section 117.[14]The relevant provisions of the 1948 Act are: "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.” (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...[15]The power to provide accommodation under section 21 was in 1993 converted into a duty by direction of the Secretary of State. By section 32(3) any question as to a person’s ordinary residence is to be determined by the Secretary of State.[16]Section 117 of the 1983 Act provides:
“117 After-care (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.”
[17]It is to be noted that section 117 contains no deeming provision corresponding to section 24(5) of the 1948 Act. Nor does it contain any provision for resolution of disputes.

Authorities

[18]The relationship of the two sets of provisions was considered by the House of Lords in R v Manchester City Council, ex p Stennett [2002] 2 AC 1127. The case provides some useful background to the matters we have to decide. The substantive issue in that case was whether a charge could be made for accommodation provided under section 117. Section 22 of the 1948 Act gave power to charge for accommodation provided under section 21, but there was no corresponding provision under section 117. The House of Lords rejected the argument that section 117 was simply a “gateway” section opening the way to use of the powers under the 1948 Act. They found it impossible to read the statutory language other than as creating a free-standing provision, which both imposed the duty and conferred the power to provide after-care services, independently of the 1948 Act (see para 10, per Lord Steyn).[19]The House was unimpressed by an argument based on possible anomalies, for example as between someone compulsorily admitted, and someone informally and voluntarily admitted to the same accommodation and treatment. Lord Steyn thought that “too simplistic”:
“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 ([2001] 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.”[20]At first instance ([1999] EWHC Admin 749; [2000] LGR 318), Sullivan J had commented on the slightly unusual Parliamentary background of section 117: “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)[21]The question of responsibility at local authority level was considered in R v MHRT ex p Hall [1999] 3 All ER 132 (Scott Baker J). Although this is not binding on us, it was not criticised by any of the parties in this appeal. Until 1991 the patient H had been living in the Torfaen area. In September of that year, following his plea of not-guilty by reason of insanity to a charge of manslaughter, he was ordered to be detained at a hospital under the Criminal Procedure (Insanity) Act 1964, by virtue of which he became a restricted patient detained without time-limit under section 37 of the Mental Health Act 1983 (and therefore within the scope of section 117). In February 1997 the tribunal decided that it was no longer necessary for him to be detained in a hospital for treatment, but made his release subject to a condition that he live outside the Gwent (or Torfaen) area. The Torfaen social services authority were unwilling to accept responsibility for providing accommodation under section 117, arguing that responsibility should rest with the authority where he would reside after release. This argument was rejected and it was held that the Torfaen authority were liable, as the authority for the area in which he had been resident before his detention.[22]The judgment of Scott Baker J has been relied on in different respects by both parties. It is common ground, as he held, that the words “is resident or to which he is sent on discharge by the hospital…” do not leave the choice in the hands of the hospital. They are designed “simply to cater for the situation where a patient does not have a current place of residence” (p 143f). Further, it is uncontroversial that, in his words, the section must be construed in the context of the Act as a whole, 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 (p 143d).[23]Of more direct interest is what he said about H’s residence:
“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 [1970] 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) ”
[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.

Non-statutory guidance

[25]Before the judge reference was made to the Departmental advice in paragraph 24 of Guidance LAC (93)7, repeated in later versions including that current at the date of the present decisions. That treated the test for allocation of responsibility under section 117 as equivalent to that under the 1948 Act, while noting that it was not covered by the Secretary of State’s power to settle disputes. It referred to “helpful advice” in the guidance issued by the ACC and AMA on 4 October 1989, adding:
“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.”
[26]The judge noted that this approach was about to overtaken by new Departmental guidance expected very shortly. The new guidance, issued by the Department of Health the day after the judgment, effective from 19th April 2010, revoked LAC (93)7 and contains the following:
“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)[27]We were also referred to the recent Law Commission Consultation Paper on Adult Social Care (CP 192 – Feb 2010), published before Mitting J’s judgment in the present case. The law in this area was described as a “confusing patchwork of conflicting statutes enacted over a period of 60 years”. In the relevant section (Part 8: Ordinary Residence and Portability), the Commission commented on the reference to residence in section 117:
“…, 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.”
[28]The paper sought consultation responses on a proposal that the concept of “ordinary residence” should be extended to after-care services under section 117 (Proposal 11-8). We were not told what (if any) responses have been made by any of the parties before us. The outcome of that consultation is not expected until later in the year.

The judgment of Mitting J

[29]The judge noted the common ground that until July 2007 LBHF were responsible for JM as ordinarily resident in their area, and that, by virtue of the “deeming provision” in section 24(5), their responsibility continued during his placement at Roanu House in LBS, including the period of his admission to Sutton Hospital under section 2 of the 1983 Act. It was also undisputed before him that, following his detention under section 3 in Sutton Hospital, the position changed. At that stage the duty under section 21 ceased, because the care he required was “otherwise available” to him. Responsibility for his after-care following release from detention under section 3 was to be determined, not under section 21, but under section 117 of the 1983 Act.[30]Having referred to the judgment of Scott Baker J in ex p Hall, the judge noted that the issue now turned on the apparent difference between the term “resident” in section 117(3) and “ordinarily resident” in the 1948 Act. He referred to the familiar authorities on such terms in other areas of the law, including: i) Levene v Commissioners of Inland Revenue [1928] 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 [1983] 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[2002] 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)[31]Mitting J concluded:
“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".”
[32]Since the “deeming” provision in section 25(4) of the 1948 Act was expressed to apply only for the purposes of that Act, there was no basis for treating it as imported into the 1983 Act. He noted the submission that his interpretation posed practical problems for those charged with the management of discharged patients, but said:
“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]Finally, he rejected an argument that LBHF were bound by a “legitimate expectation” resulting from the earlier agreement between the local authority associations, the effect of which, until 2010, was reflected in the Departmental guidance to which I have referred. Having reviewed the evidence, he concluded:
“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

[34]Before this court, Mr Green and Miss Lieven have deployed essentially the same arguments as were made before the judge, although they were developed at some length in the skeletons (running to some 50 pages) and in oral submissions. I will not do more than attempt to summarise the main points. The case turns at the end of the day on a relatively short issue of construction.[35]It is important also to remind ourselves that the facts of JM’s case, though useful by way of illustration, are not formally in issue before us. The issue is one of principle. The only substantive relief sought by HCC, as appellants, is a declaration, which as formulated in the notice of appeal is as follows:
“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.”
[36]Both counsel emphasised the practical problems which the judge’s decision creates, some conveniently summarised in Miss Lieven’s skeleton:
“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.”
[37]These concerns echo those mentioned by the Law Commission. Like the judge, I see no reason to question them in the context of this appeal. The problem which both counsel faced was how to address them within the constraints of the apparently clear statutory language.[38]Mr Green emphasised the need to adopt a “purposive” approach to construction, referring to well-known authorities such as R (Quintavalle) v Secretary of State [2003] 2 AC 687 para 21, per Lord Steyn). His main criticism of Mitting J’s judgment, as I understood him, was its emphasis on the subjective views of the patient, apparently reflecting the references in the cases to the need for the residence to be “voluntary”. As he put it in his skeleton:
“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.”
[39]He supported his arguments by reference to the European Convention on Human Rights, in that a change of social care responsibility at such a critical time will tend to cause uncertainty and lead to consequent delay in release from detention contrary to Article 5 (or, as Miss Lieven put it, unjustified interference with his right to private life under Article 8). Finally he renewed his alternative argument based on legitimate expectation, while recognising that for the future it has been effectively overtaken by the 2010 guidance.[40]Miss Lieven took us through the complex and protracted history of the legislation leading to section 117 in its present form. To my mind, with respect, this exercise in legal archaeology threw little light on the problem we have to decide, other perhaps than by confirming the truth of the Law Commission’s observations about the state of law in this area.[41]Much more pertinent was her detailed critique of the judge’s interpretation of the term residence, by reference to the relevant authorities. Like Mr Green, she submitted that a test based on “voluntariness” is inappropriate in the context of section 117, in relation to patients who frequently lack capacity to make decisions on their accommodation, and whose place of accommodation may often depend (as in JM’s case) on factors outside their control, such as the availability of appropriate facilities. Such considerations were reflected in the deeming provision in the 1948 Act, which had meant that JM’s period of living at Roanu House did not end LBHF’s responsibilities under that Act. Although the deeming provision is not repeated in the 1983 Act, the legislative context and purpose are the same. As she submits, the concept of “residence”, properly understood in the light of the authorities, is in itself sufficiently flexible to accommodate that purpose.[42]Among the authorities she relied on were the following: 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 [2006] 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 [2010] 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.[43]Applied in the present context, she submitted, the same approach should lead to an interpretation under which a person placed in accommodation by a local authority prior to detention remains resident in the placing local authority. That would be consistent with the approach adopted in ex p Hall. It was also supported by the pragmatic approach taken by Taylor J in R v Waltham Forest LBC, ex p. Vale (1985) The Times LR February 25th 1985, in which it was held (without reference to any deeming provision) that a mentally disabled 28 year old was ordinarily resident at her parental home, not in the residential care home in which she was placed.

Discussion

[44]I have considerable sympathy for the appellants’ arguments. It is not easy to see why Parliament did not simply follow the precedent of the 1948 Act when enacting the duty under section 117.[45]However, the 1948 Act precedent must have been well-known to those involved in drafting the new Bill. It is possible that the introduction of this clause without government support may have resulted in less attention than usual being paid to its relationship with other provisions. However, such speculations are of no relevance to the task of interpretation. We have to proceed on the basis that Parliament deliberately chose a different formula; and that, by implication, it accepted the possibility of responsibility changing over the period of detention, including the potential impact on continuity of patient care. Furthermore, we are bound by Stennett to accept that section 117 was intended to be a free-standing provision, not dependent on the 1948 Act.[46]Those considerations are sufficient in my view to require us to reject Mr Green’s proposed form of declaration. That invites us to hold that “is resident” in section 117(3) has “the same (or substantially the same) meaning” as ‘is ordinarily resident’ in section 24. That is inviting us to rewrite the language of the statute to the form which Parliament could have adopted, but did not. It also glosses over the status of the deeming provision. This view is reinforced by the contrast with the case where accommodation is provided under section.117 by a Primary Care Trust or Local Health Board; there Parliament has amended section 24 so as to apply a deeming provision (see the substituted subsections (6) and (6A)).[47]Miss Lieven did not offer an alternative form of declaration. However, I see more attraction in her emphasis on the flexibility inherent in the expression “is resident”. As she says, in ex p Hall it was stretched to mean in effect “was resident before his detention more than five years ago”. If the period of detention under section 3 is to be excluded in order to achieve the statutory purpose, why should one not equally exclude a period of placement, for reasons outside the patient’s control, in a home such as Roanu House? In JM’s case, it seems anomalous that the same period of residence, which is ignored for the purpose of the 1948 Act, should become the foundation of responsibility under the 1983 Act.[48]To assess the legal force of this argument, it is necessary to consider why the period of detention under section 3 is 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.”
(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.[50]More relevant to my mind are the references in the cases to the effect of imprisonment, as a parallel to compulsory detention under section 3. As already noted, in the context of ordinary or normal residence, “voluntariness” is treated as an important factor. In Shah Lord Scarman stated in terms that for that purpose periods in prison do not count. A similar approach has been applied to simple “residence” in other contexts, for example residence qualifications under European regulations (see e.g. CC(Portugal) v Home Secretary [2010] EWCA Civ 1406). By contrast, in Gateshead MBC v L [1996] Fam 55 (responsibility for child protection) Wilson J drew a distinction between the two concepts. As he put it “incarceration does not preclude simple residence – indeed it secures it…” (p 59H).[51]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.[52]Although there are policy reasons for excluding a period of placement under section 21, neither counsel was able to offer a legitimate interpretative technique to achieve that result. Placement under that section is not compulsory, even though the patient may in practice have little choice. Nor, in the light of Stennett,can one find in section 117 any express or implicit link to section 21, on which one could found such an exclusion. The fact that the judge’s approach is in line with the Department’s most recent guidance cannot of course influence our approach. However, it may help to offset any temptation the court might otherwise have to stretch the ordinary rules of statutory construction to achieve what it perceives as a preferable result. Furthermore, the Law Commission’s current project on this subject provides a much better forum for considering and remedying any defects in the present law. In my view therefore the judge directed himself correctly in law. Although the facts of JM’s case are not formally before us, I see no reason to question his conclusion.[53]Finally, I can deal briefly with the alternative submission based on legitimate expectation. As already noted it is of no practical significance for the future. Although theoretically it may be relevant to decisions taken before the new guidance came into effect, I do not think the court should attempt to decide the issue in the abstract, without regard to the facts of a specific case properly before it. I would only say this. While it is of course desirable for the “care programme approach” that authorities should “co-operate and agree” (as the 1993 guidance said), this cannot override their duties as defined by the statute. If on a true reading of the statute HCC is legally responsible for the after-care of a patient, I do not see how a non-statutory agreement, even with the assistance of the doctrine of legitimate expectation, can enable it to evade that responsibility.

Conclusion

[54]For these reasons, I would dismiss the appeal, and refuse the declaration.

LORD JUSTICE RIMER :

[55]I agree.

LORD JUSTICE SULLIVAN :

[56]I also agree.

Cited in 11 later judgments

and 2 more of the most senior