Worcestershire County Council, R (on the application of) v Essex County Council [2014] EWHC 3557 (Admin)

Case No CO/6061/2013

[2014] EWHC 3557 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Birmingham Civil Justice Centre, Bull Street, Birmingham B4 6DS

Date 29/10/2014

Before

HHJ DAVID COOKE

Between

R (oao Worcestershire County Council)Claimant

Essex County CouncilDefendant

Victoria Butler-Cole (instructed by Head of Legal and Democratic Services) for Claimant

Barbara Hewson (instructed by Essex Legal Services) for Defendant

Hearing Hearing date: 9 September 2014

Judgment

HHJ David Cooke :

[1]The claimant ("Worcester") seeks a decision that the defendant ("Essex") is the local authority responsible for funding care for services for VC, a young woman with a troubled mental health history following a childhood brain injury, pursuant to s 117 Mental Health Act 1983 ("MHA" or "the Act") in the period following VC's discharge from detention under s3 of that Act.

[2]The legal issues have been considered by courts at first instance and at Court of Appeal level on a number of occasions and are set out in the judgment of Lloyd LJ in R (Sunderland CC) v South Tyneside Council

[2012] EWCA Civ 1232

, to which both counsel referred me as the leading authority. “2. MHA provides in section 3 for a patient to be admitted to a hospital and detained there for a period, upon conditions laid down in that and other provisions of the Act. This is what is sometimes referred to, in common parlance, as being "sectioned". Section 2 provides for a patient to be admitted to a hospital and detained for a limited period for assessment. Both of these provisions allow the patient to be admitted to hospital against his or her will. They can be applied to a patient who is already in hospital as an in-patient. None of the provisions of the Act as regards compulsory admission or detention precludes the admission of a patient who requires treatment for mental disorder from being admitted to hospital on a voluntary basis; this is sometimes called informal admission: see section 131. 3. The appeal is concerned with the situation that arises when a person who has been detained under section 3 ceases to be so detained and (whether or not immediately) leaves hospital: see section 117(1). When that happens, a local authority becomes responsible for the after-care of the person so discharged. Section 117(2) provides, so far as material, that it is the duty of "the local social services authority", in cooperation with other agencies, to provide after-care services for such a person until they are satisfied that the person concerned is no longer in need of such services. So, one has to ask: which is the relevant local authority? As to that, section 117(3) says that, in the section, "the local social services authority" means the local social services authority "for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained"… The cases of JM and Hall 9. In R (Hertfordshire County Council) v. Hammersmith and Fulham London Borough Council

[2011] EWCA Civ 77

, to which I will refer as the JM case, the Court of Appeal held that during a period of detention the person in question is not resident for the purposes of section 117(3) in the hospital in which he or she is detained. Otherwise such a person would always, or almost always, be resident in the area of the relevant hospital. The decision in the JM case approved and explained an earlier decision at first instance, R (Hall) v Mental Health Review Tribunal

[1999] 3 All ER 132

(the Hall case), where Scott Baker J said that the relevant local social services authority was that for the area in which the patient was resident when he was detained... 10. It follows that, in almost all cases of this kind, it will be necessary to look back at the position as it was some time ago in order to determine the place of residence for the purposes of the section, if for no other reason than that the issue arises on discharge from detention but that, in making that determination, the place of detention, that is to say the hospital, has to be ignored. Given the exclusion of the hospital, only rarely would there be any possible place of residence other than a place or places which had been relevant before the period of detention. The detention may last for some considerable number of years, so that it may be necessary to look back quite a long time.”

The cases of JM and Hall

[3]The particular issue on the facts in the Sunderland case was that the patient, SF, was immediately before her detention under MHA already living at the hospital, having been admitted on a voluntary basis. The Court of Appeal upheld the decision that she had been "resident" at the hospital then; only the period of compulsory detention being left out of account. Although she had been living at student accommodation prior to her voluntary admission she could not be regarded as remaining resident in that accommodation since its availability was withdrawn after she was admitted to the hospital but before she was sectioned. I shall need to look more closely at the reasoning that led to this conclusion and apply it to the facts of this case.

[4]It is common ground before me that although s117 apparently provides for two alternatives as to the "area" which identifies the responsible local authority the second (ie the area "to which [the person concerned] is sent on discharge by the hospital…") is a matter of last resort and only comes into play if no area can be identified in which the person "is resident".

Factual background

[5]I can summarise the relevant factual background in this case as follows. VC was born in 1990 and is now 23. Her family's home has always been in Worcestershire. At the age of about 5 she sustained a serious brain injury in an accident. This had very marked effects on her behaviour (at least) and she was unable to live at home with her parents. She was placed in a variety of educational and residential facilities, all arranged by Worcester, but was very disruptive to staff and other residents with many incidents of assault by her. Nevertheless she was able to undertake some education, and achieved 3 GCSE qualifications. There has been a long running concern as to the extent, if any, of her cognitive impairment and her capacity to make decisions in relation to her affairs. Assessments at different times have come to different conclusions ranging from quite serious cognitive impairment to virtually none, with reference being made to possible manipulative behaviour by VC.

[6]For about 2 years between 2007-9 she was accommodated at Bakers Cottage in Somerset, a small home for young people up to 18. I am told that although the home was intended to have four residents, VC was so disruptive that all others were moved out and she remained with up to 7 staff looking after her alone. In September 2009 she was moved by Worcester, to Grafton Manor, a care home in Northamptonshire, just before her 19th birthday. She was assessed at the time of that move as having capacity to consent to it herself and accordingly no compulsory powers under MHA were used and no 'best interests' decision was made on her behalf under the Mental Capacity Act 2005. Her disruptive behaviour continued however, with assaults on staff and other residents that led to complaints and the conclusion that Grafton was not an appropriate placement. It is accepted that this was something of a crisis, and an alternative placement was found on an emergency basis at Oaktree Manor, in Essex, to which VC moved on 14 October 2009.

[7]In contrast to Grafton, Oaktree is a hospital for patients with learning disabilities. It has additional staffing and facilities, including a low level security rating, that were better able to contain and manage VC's behaviour. VC herself however found it a frustrating environment since she does not consider herself to have a learning disability as the other residents had. She was apparently assessed at or about the time of transfer and according to later records 'clearly demonstrated she had the capacity to consent to her treatment at Oaktree Manor'.

[8]On the day after her arrival at Oaktree, 15 October 2009 VC was assessed to see if she should be detained under MHA but found not to be eligible. A few days later however on 20 October she was reassessed as a result of an increase in her challenging behaviour, and detained under s2 MHA for assessment. On 13 November 2009 she was detained for treatment under s3 MHA.

[9]On 10 October 2010 VC was discharged from her s3 detention. Since then she has lived in a variety of locations, including a period of voluntary admission to the Queen Elizabeth Psychiatric Hospital in Birmingham during which she was subjected to temporary detention under s5 MHA. All of her placements have to date been funded by Worcester. It has no doubt been very expensive. There have been long running discussions with other authorities and bodies as to whether they should pick up some or all of that expense. No such issues are before me save that in relation to Essex and its potential responsibility under s117 MHA. The only matter I need mention in relation to such other bodies arises because s117 imposes joint responsibility for after-care on "the local social services authority" and "the clinical commissioning group" for the area in which the former detainee is resident. The North Essex CCG has accepted that it is jointly responsible, so accepting that VC was resident in its area (which is within Essex's area) for the purposes of s117. That acceptance is not of course binding on Essex.

Submissions

[10]Worcester's contention is that VC was resident at Oaktree immediately prior to her detention under s2 MHA, and that is the relevant date for the purposes of s 117. It is accepted that the period of detention under s2 is to be discounted, just as the period of detention under s3 is discounted. VC was resident at Oaktree because she was as a matter of fact living eating and sleeping there. She had no other place of residence because her former placement at Grafton Manor was no longer available to her. It does not matter that she had only been at Oaktree for a short period; the move to Oaktree was not a temporary expedient with the intention of a return to Grafton but a change of residence from Grafton to Oaktree. VC would not have been expected to stay indefinitely at Oaktree, but until a decision was taken as to where and when she would move, and she actually did so, Oaktree was her place of residence.

[11]Essex's position is that notwithstanding the assessments apparently conducted at the time of VC's placements at Grafton and Oaktree, she did not have capacity to decide where she should reside and/or to consent to those placements. This they say may either be concluded from the material before the court (which includes past assessments casting doubt on her capacity for some purposes) or requires findings to be made after a hearing at which evidence is called as to her capacity on the relevant dates in the past, for which judicial review proceedings are inappropriate. The lack of capacity meant that she was deprived of her liberty for the purposes of

Art 5 ECHR

and detained at Grafton and Oaktree respectively. No authorisation having been obtained for such detention under the MHA or the Mental Capacity Act it was unlawful. Any such period of detention should be ignored for the purpose of s117 MHA in the same way as detention under s3 is to be ignored. Alternatively, her placement at Oaktree was on an emergency basis, and to be considered as a temporary expedient lacking the sense of permanence required to acquire residence. The result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself.

[12]Ms Butler-Cole for Worcester responds to these submissions that the period of detention under MHA is excluded as a matter of construction of s117, and the reasons for so construing the section do not extend to any earlier period, even if that might be regarded as amounting to detention or deprivation of liberty. Further, the Court of Appeal in the Sunderland case made clear that the section should be interpreted in a way which is conducive to good administration, which would not be the case if the court were now to have to embark on a factual enquiry as to the state of VC's possibly fluctuating capacity to decide on her own place of residence at a date now five years ago, and possibly at earlier dates as well. If such an enquiry has to be made, she contends it should not go beyond the recorded assessments made at the time of admission.

Discussion

[13]I accept the submission that the reasons for excluding the period of compulsory detention in considering where a person is resident do not extend to any other period. Those reasons were set out by Carnwath LJ (with whom the other Lords Justices agreed) in the JM case as follows:

“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.”

[14]The "detention" referred to is detention under the MHA, that being the trigger for the aftercare obligation. It is required to be ignored since otherwise the place of detention would almost always fix the place of residence, and yet the section refers to the place of residence as a matter separate from the place of detention. This reasoning in my view extends to a period of detention for assessment under s2 MHA which precedes and leads to subsequent detention under s3. Although s 117 refers to persons "who are detained under section 3 above" and then released, if there has been an immediately preceding detention under s2 for assessment that is part of the process of initiating the detention under s3, and if the intention of Parliament was to exclude the place of detention under s3 it would make no sense to include the place (likely to be the same) of prior detention for assessment.

[15]No point appears to have been taken as to any distinction between those periods in the Sunderland case, although the patient in that case was detained first (on 10 December 2009, see para 7 of the judgment) under s2 and only later (24 December) under s3. The question was addressed as to whether her voluntary presence in hospital prior to 10 December established residence- see para 15 of the judgment. If the period of detention under s2 was not also to be excluded, the period between 10 and 24 December would have required to be separately considered.

[16]Neither party before me sought to draw any distinction between detention under s2 and under s3. To do so would not have assisted Essex, though it would have been in favour of Worcester not to exclude that period. In my view counsel were right not to take any point based on that distinction.

[17]I do not consider it would be right however to extend that construction so as to exclude other periods, merely because the person's presence in a particular location might amount to a deprivation of liberty for other purposes. The degree to which presence in a particular place is voluntary is relevant to questions of residence, but the degree of relevance is dependant on the context in which the term is used. In the JM case the Court of Appeal held that the judge in Hall had been wrong to refer to "residence" for the purposes of s117 as being "ordinary residence", that term being used in other contexts and potentially carrying a different meaning.

[18]Having referred to the question whether temporary absence on holiday might amount to a change of residence, Carnwath LJ continued at para 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).”

[19]What is in issue in relation to s117 is what Wilson J referred to as "simple" residence, ie residence without qualifying words such as "ordinary" or "normal" or "habitual" used in other contexts which may require the court to look beyond the immediate question of where a person is actually living eating and sleeping at a particular point in time.

[20]Carnwath LJ went on to state that a period of placement under s21 National Assistance Act 1948 was not to be ignored. Although he noted that such a placement "is not compulsory even though the patient may in practice have little choice" the reason given was not based on the degree of voluntariness of the patient's presence but because s117 could not be construed so as to exclude such a placement; see para 52 of the judgment.

[21]In the Sunderland case, Lloyd LJ laid some stress on the fact that the admission to hospital was voluntary in establishing the hospital as the place of residence, at least once the previous residence ceased to be available. But he did so, it seems to me, in the context of addressing whether a person was resident in one or the other of two possible locations. He said this:

“31. I agree with the comment made in other cases that, in general, when considering any case in which there is doubt as to the place of person's residence, the question is not only that of physical presence, and that it may be relevant to consider why the person is where he or she is, and to what extent his or her presence there is voluntary. Thus, if a person has a home, the fact that he or she is not there on a given date or for a particular period does not mean that he or she is not still resident there, if the absence is accounted for by, for example, a holiday, a business trip, or having to spend time in hospital, whether following an injury, an operation or some other form of treatment, possibly over a prolonged period, or, for that matter, a period of imprisonment following a criminal conviction. That explains the accepted position that SF continued to be resident at Westfield Hall after her admission to hospital on 4 October 2009. 32. In Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57, the statutory phrase under consideration was "normally resident", in section 199 of the Housing Act 1996, part of the provisions dealing with a local housing authority's duties as regards the homeless, and in particular with the issue of local connection. The local housing authority argued, unsuccessfully, that a previous period of residence pursuant to the discharge of its own duty under the Act should not count towards establishing a local connection. Lord Slynn said this at paragraph 18: "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." 33. Among the various observations about statutory phrases to do with residence that were cited to us, I find these on the part of Lord Slynn the most helpful for present purposes, though I note that even the provision which he was considering has some additional elements of statutory definition. 34. One of the points that Lord Slynn makes is that if one is living in a given place voluntarily it may be one's residence even if there is or was not much of a range of choices to be made as to where to live. That could be said to have been the position of SF at various stages in her life. 35. It is clear that there can be cases in which the last place where the patient was eating and sleeping before detention under MHA was not the place of his or her residence. This could be because he or she was temporarily away from an established home at the relevant time as a matter of choice. It could be because he or she was in prison. In such cases, the place of residence (if any) is elsewhere. Lord Denning in Fox v Stirk spoke of temporary absence from home in hospital. He may not have had in mind the position of someone spending more than five years in hospital. An absence for such a long time might not be a temporary absence from a home which is the patient's place of residence. But if a home remained available throughout that time to which, subject to the patient's fitness, he or she could return, then that home might continue to be his or her residence.”

[22]Thus if a person has a home in one place, he may not cease to reside there if he is away from it either involuntarily, eg because of imprisonment, or voluntarily but temporarily, eg for a holiday or because of admission to hospital, at least for a relatively short period. If he has no other residence, his voluntarily coming to live in a place makes that his residence even if he would have preferred if possible to be elsewhere, or has no choice but to accept it, or it is not a place in which someone would ordinarily reside.

[23]I do not however read these passages as deciding that a person cannot acquire residence in a place unless he does so voluntarily. Still less do they decide that residence may only be acquired as a result of a decision made by a person with capacity, or lawfully on his behalf by someone else.

[24]What then if the person has no capacity to decide for himself where to live? If he in fact lives eats and sleeps somewhere (and has no other place that may be considered his home) is that not to be taken as his residence? That would be the effect of Essex's argument in this case. In my judgment this too is a question that must be answered in accordance with the context in which it is asked. In the context of s117, Lloyd LJ said this:

“27. In terms of the overall policy of MHA and that of section 117 in particular, Langstaff J said [at first instance] at paragraph 23(1) that the section must be construed in the context of Parliament's presumed intention to establish a workable and effective system to provide for after-care in the community for patients released from hospital. That is common ground. In particular, the objective of the provisions is that it should be possible to prepare in advance for the discharge of the patient...”

[25]Patients liable to detention under the MHA may very often have long term mental health problems and degrees of mental impairment that fluctuate over time and are difficult to assess. Their capacity must of course be assessed in the context of a particular decision, at the time they are called on to make it. It would not be a workable or effective system, or one which enabled responsibility for aftercare to be readily ascertained prior to discharge from a period of detention if it were necessary to examine retrospectively the patient's capacity at a date in the past, particularly if that might involve consideration of a question that was not in fact addressed at the relevant time, or if there was no contemporaneous psychiatric assessment. The present case is a paradigm example of the potential difficulties; Essex seeks to have a retrospective assessment now in which it would challenge the adequacy of assessments that were in fact made at the relevant times, saying they are out of kilter with other assessments for different purposes and at different dates.

[26]Nor would engaging on that enquiry necessarily result in an allocation of responsibility that would be any less fortuitous or more satisfactory in terms of the policy of the section. For patients with a long term history of capacity and institutional intervention, the conclusion might be that they had no place of residence and accordingly responsibility would fall on the authority for the place to which they were discharged. That would potentially act as a disincentive to an authority to make available a place for a person who still may have long term and expensive needs.

Conclusion

[27]The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. There may be reasons to conclude that he has not lost an established residence elsewhere, for example because of imprisonment or because he is only temporarily away from that residence on holiday, but if he has no such other place, and in the absence of some other special factor, his actual place of abode is his residence. This would be so whether he is there voluntarily or involuntarily, and whether any lack of voluntariness is caused by his will being overborne (eg on imprisonment) or because a decision he has in fact made is vitiated by lack of capacity, or if the decision has in reality been taken on his behalf by someone else, with or without lawful authority to do so.

[28]The Court of Appeal recognised in the Sunderland case that the application of what they considered to be a relatively straightforward test might lead to anomalous cases, and that there could be good policy reasons for having a system that did not depend solely on residence at a particular date. The anomalies arise however because residence is tested only at the point immediately before detention and takes no account of what may be a long term history of health interventions by authorities that might be regarded as having assumed some responsibility for the patient. It is not because there is anything unworkable or capricious in the evaluation of where the person is actually resident at that date.

[29]The court rejected any attempt to interpret the section in a way that would allow the court to take account of the surrounding circumstances and history to make what would in effect be a policy decision as to which authority ought in all the circumstances to bear the cost. That would be to usurp the function of the legislature. So too in my view would it be to seek to depart from the relatively straightforward enquiry as to where a person was in fact living eating and sleeping, in the absence of some special factor pointing to another place of residence.

[30]There are no such factors in this case. When VC moved to Oaktree, it was not as a temporary move away from an existing place (at Grafton or anywhere else) that remained available to her. She was in the same position as the patient in the Sunderland case. No doubt she would not have been expected to stay at Oaktree for a very long time, but it was nevertheless the place at which she was living unless and until she actually moved somewhere else. Her presence there was indefinite in the sense that no end point had been defined, even though a move on at some stage might have been envisaged. I can envisage arguments that if, for instance, a long term place had been identified elsewhere but was not available for a day or so, short term emergency accommodation at Oaktree in the interim might not establish residence, but that is not this case.

[31]In my judgment Oaktree became VC's place of residence for the purpose of s117 at the point when she moved there without any place being either held open for her at Grafton or identified elsewhere. There should be an order accordingly, which I invite the parties to agree.

[32]I am told that the matters in issue in this case will not arise in future, because s117 has been amended by the Care Act 2014 to provide for a regime of long term responsibility of an authority, rather than one which may shift as a patient moves around the country. That is no doubt sensible in terms of policy, but as was recognised by the Court of Appeal it is not a result achievable by legitimate interpretation of the earlier statute.

[33]I will list a hearing at which this judgment will be handed down. There need be no attendance if the parties can agree an order. If they are not able to do so and matters arising can be dealt with shortly (30 minutes maximum) I will do so at that hearing, otherwise parties should agree a time estimate and supply availability and a later hearing will be listed.