Patient – Responsible local social services authority – Residence of patient

R (on the application of Sunderland City Council) v South Tyneside Council: Court of Appeal, Civil Division: 9 October 2012

In 2007, the first interested party, SF, was aged 18. She was detained under s 3 of the Mental Health Act 1983. At that time, the second interested party, Leeds City Council (Leeds), was the relevant local social services authority (LSSA) for the purposes of s 117(3) of the Act. She was later discharged from that detention. In September 2009, Leeds placed her at a residential college in Sunderland, ESPA College, in connection with which she lived at a hall of residence, Westfield Hall.

It was common ground that, at that time, the claimant local authority (Sunderland) was the LSSA as SF was resident within its boundary. After three weeks at ESPA College, SF attempted suicide. On 7 October, on her discharge from hospital, SF was moved, with her consent, to Rose Lodge. It was likely that, had SF not consented, compulsory powers would have been used. Rose Lodge was an NHS hospital that provided short term treatment for patients with learning difficulties within the area of the respondent local authority (Tyneside). SF did not heave learning difficulties. On 23 October, her placement with ESPA College was terminated along with her licence to reside at Westfield Hall.  

On 9 December, SF absconded from and refused to return to Rose Lodge. On 10 December, when she failed to return to Rose Lodge, SF was detained for assessment there under s 2 of the Act. At that stage, Leeds still accepted responsibility for SF as being the relevant LSSA. Later that month, SF was detained at Rose Lodge for treatment under s 3 of the Act. At the time of the instant proceedings she remained under detention. In November 2010, Tyneside issued a position statement which suggested that Sunderland was the relevant LSSA and, therefore, bound under s 117 of the Act to provide SF with after-care services following her eventual release from compulsory detention. Sunderland sought judicial review of that decision. Its application was dismissed.

The judge held that SF had not changed her residence after she moved to Rose Lodge as her admission, although not compulsory, had been closely analogous to a compulsory admission. He found that the circumstances in which he had to categorise and evaluate the question of residence had come close to being involuntary. Although SF had not been compelled, save by the force of circumstances, to be at Rose Lodge, it was part of the facts and circumstances of the matter as a whole that there had been force in the circumstances that surrounded her situation. Further, Rose Lodge was, by its nature, intended to be short term accommodation and was not ideally suited to SF’s needs. Furthermore, although SF had been admitted to Rose Lodge voluntarily, that did not amount to her having become resident there, either immediately or when Westfield Hall had no longer been available to her. Sunderland appealed.

It submitted that: (i) the judge had been wrong to ask himself whether from 23 October to 10 December 2009 SF had been in hospital as part of the regular order of her life for the time being and, alternatively, that if that had been the correct question, he had given the wrong answer to it; and (ii) SF could not have been resident in Sunderland after 23 October by which time there had been no accommodation within the area of Sunderland available to her. In respect of the first submission, consideration was given to Shah v Barnet London Borough Council([1983] 1 All ER 226) (Shah) and Mohamed v Hammersmith and Fulham London Borough Council ([2002] 1 All ER 176) (Mohamed). The appeal would be allowed.

(1) The test set out in Shah was not a helpful guide to the meaning of 'is resident' in s 117(3) of the Act. That was because the circumstances to which the test of ordinary residence was to be applied under the Education Act 1962 were very different from those in which s 117(3) of the Act had to be considered. Mohamed was more helpful and relevant. It was clear that, for the purposes of s 117 of the Act, a person could not have more than one residence, whereas for other legislative purposes the person in question could be resident in two different places at the same time. In general, when considering any case in which there was doubt as to the place of a person's residence, the question was not only that of physical presence, and that it might be relevant to consider why the person was where he was, and to what extent his presence there was voluntary.

Thus, if a person had a home, the fact that he or she was not there on a given date or for a particular period did not mean that he was not still resident there, if the absence was accounted for by, for example, a holiday, a business trip, or having to spend time in hospital, whether following injury, operation or some other form of treatment, possibly over a prolonged period. It was clear that there could be cases in which the last place where the patient was eating and sleeping before detention under the Act was not the place of his residence. That could be because he was temporarily away from an established home at the relevant time as a matter of choice. In such cases, the place of ordinary residence, if any, was elsewhere.

An absence for a long period of time, for example five years spent in hospital, might not be a temporary absence from a home which was the person's place of residence, but if a home remained available throughout that time to which, subject to the patient's fitness, he could return, then that home might continue to be his residence (see [26], [30]-[33], [35], [47] of the judgment).

The judge had been wrong to ignore the fact that, while SF was in Rose Lodge as a voluntary patient, she had ceased to have any other place of residence available to her on 23 October 2009 so that there was, from that date onwards, no alternative to regarding her as a resident of Rose Lodge, unless she was to be seen as not resident anywhere. The case of no residence was a last resort which should not be held to apply except in extreme and clear circumstances. The judge had applied the guidance in Shah in preference to that in Mohamed. Consequently, the judge’s reasoning had not been correct (see [37], [46] of the judgment).

Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 All ER 176 adopted; Fox v Stirk; Ricketts v Registration Officer for the City of Cambridge [1970] 3 All ER 7 considered; Shah v Barnet London Borough Council [1983] 1 All ER 226 considered; R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham 119 BMLR 27 considered.

(2) In addressing the question of where a patient was resident, a date earlier than the moment of detention could not be adopted as the date as at which it was necessary, or even legitimate, to address that question (see [41], [42], [45], [48] of the judgment). In the instant case, after 23 October 2009, there had been no place available which could have been regarded as being where SF was resident other than Rose Lodge (see [48] of the judgment). A declaration would be made that Tyneside was the LSSA relevant for the purposes of s 117(3) of the Act in relation to SF (see [49] of the judgment). Decision of Langstaff J [2011] EWHC 2355 (Admin) Reversed.

Hilton Harrop-Griffiths and Steven Fuller (instructed by the legal services department of Sunderland City Council) for Sunderland; Nathalie Lieven QC and Christopher Mitford (instructed by the legal services department of South Tyneside Council) for Tyneside; The interested parties did not appear and were not represented.