Court of Appeal allows appeal in leading inter-authority disputes case over after care service for formerly detained patients

October 8, 2012

R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232.

Tony Harrop-Griffiths and Steven Fuller have successfully represented the appellant local authority, Sunderland City Council, in their claim against South Tyneside Council in which the Court of Appeal handed down judgment today http://www.bailii.org/ew/cases/EWCA/Civ/2012/1232.html .

The case concerned the question of which local authority will be responsible for the provision of s.117 after-care services, on discharge, to a woman (“SF”) who is currently detained in hospital pursuant to s.3 Mental Health Act 1983 (“MHA”).  The case clarifies the meaning of “resident” for the purposes of s.117 MHA.

SF was placed at a residential course at ESPA College in Sunderland in September 2009.  After a suicide attempt on 3 October 2009 SF was taken ultimately to South Tyneside District Hospital on 6 October 2009 as a voluntary patient.  She was subsequently moved to Rose Lodge, an NHS Hospital in South Tyneside.  On 23 October 2009 EPSA College terminated her placement with the college and her licence to live in its hall of residence.  SF continued to be treated at Rose Lodge and was subsequently detained on 24 December 2009 under s.3 MHA for treatment.

Tony Harrop-Griffiths and Steven Fuller successfully argued that the judge at first instance had adopted the wrong test as to the meaning of residence, mistakenly having regard to the case law on “ordinary residence” for the purposes of other statutory provisions.  The Court of Appeal clarified that if a person is living in a given place voluntarily it can be one’s place of residence even if there is or was not much of a range of choices as to where to live.  Thus it was possible to be resident for these purposes in a hospital.  Further, the court held that the fact that SF had lost her accommodation in Sunderland was decisive in that SF could no longer be resident in Sunderland.

The case provides useful clarity as to the responsible local authority for s.117, although it is anticipated that when the current Draft Care and Support Bill becomes law, the position will change again, making the test one of “ordinary residence” and providing for a mechanism for the Secretary of State to resolve disputes.

Both Tony and Steven have experience of advising and drafting in relation to ordinary residence disputes referred to the Secretary of State in the context of community care and will be well placed to advise on disputes under both the current and new regimes.