Judge: HHJ David Cooke, sitting as a Deputy High Court judge
Citation:  EWHC 3557 (Admin)
In R(Worcestershire County Council) v Essex County Council  EWHC 3557 (Admin), HHJ David Cooke, sitting as a Deputy High Court judge, has held that the rationale for excluding from periods spent under detention under the MHA 1983 does not extend to other situations and, specifically, that periods spent deprived of liberty under the provisions of Schedule A1 to the MCA 2005 are not ignored when deciding where a person is resident for purposes of s.117 MHA 1983. In rejecting the contention that allegedly unlawful periods of detention in a care home in Essex were to be ignored for purposes of deciding where an individual was “resident” (unlawful because the individual in question was said – retrospectively – to have lacked the material capacity and no authorisation had been sought or granted under Sch A1), HHJ Cooke examined the position vis-à-vis capacity thus:
“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 [in R (Sunderland CC) v South Tyneside Council  EWCA Civ 1232]:
‘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.
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.”
As HHJ Cooke noted, this decision will be of time-limited impact given the changes coming in in April 2015 with the coming into force of s.39(4) Care Act 2014 and the alignment of ‘residence’ for s.117 MHA 1983 purposes with ‘ordinary residence’ for other community care purposes.
Note should be had in this regard to Chapter 19 of the statutory guidance that has now been issued to accompany Part 1 of the Care Act. This guidance, in addressing the cases of those who do not have capacity to decide as to residence (at paragraphs 19.15-19.19), is in very short form indeed. Interestingly, and despite the fact the Court of Appeal in R(Cornwall Council) v SoS for Health & Ors  EWCA Civ 12 held in terms that Vale 1 test (in essence equating the ordinary residence of the incapacitated adult with that of their parents) was incorrect as a matter of law, a vestige of it remains at paragraph 19.18:
“19.18. In the case of a person whose parents are deceased, people who have become ordinarily resident in an area and then lost capacity or have limited contact with their parents, the approach known as Vale 2 is appropriate. This involves considering a person’s ordinary residence as if they had capacity. All the facts of the person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence but without requiring the person have voluntarily adopted the place of residence.”
No doubt the Supreme Court will, in due course, pronounce upon this aspect of the guidance when it determines the appeal of the Secretary of State and Somerset County Council in the Cornwall case.