When people leave hospital after being detained under the Mental Health Act, they and their families need to know who will be responsible for ongoing funding and care arrangements. This rests on what is deemed as their place of ordinary residence before they were admitted to hospital.

At the moment, there is conflicting guidance about what constitutes an ordinary residence. Existing statutory guidance under section 117 aftercare (Mental Health Act 1983) states that a person’s ordinary residence for the purposes of aftercare is determined by the place where they were ordinarily resident, immediately before their detention. This applies even if they are discharged to a second area and then move to a third one.

Care Act statutory guidance however, says that if a person ordinarily resident in area A is discharged to area B, and is then detained again, the local authority in area B would become responsible for their aftercare.

In an ongoing dispute at council level, which we are watching with interest, Worcestershire Council was found to be responsible for providing care for someone after they had left hospital.  The council responded and claimed that this was the responsibility of another local authority and initiated a legal challenge to the Health and Social Care Secretary Matt Hancock. Worcestershire Council says it has ensured that this has not adversely affected any care provided. 

Update: 29.06.20

The Department of Health and Social Care (DHSC) has released five ordinary residence determinations concerning Section 117 aftercare under the Mental Health Act. They look to change the way that ordinary residence is determined. All the determinations concern cases where the individual concerned has been detained on more than one occasion under the Mental Health Act.

It has been understood previously that Section 117 aftercare is to be provided by the local authority where the person was immediately before each detention in hospital. The Care Act, care and support statutory guidance reinforces this clearly.

The new position is that the responsibility remains with the local authority in whose area the person was ordinarily resident immediately before the first detention in hospital.

The government's approach is being challenged in court by one of the local authorities involved (Worcestershire CC). DHSC has announced that all new determinations will stay pending the outcome of this case, and as a result, the guidance will be delayed.

We will be following the challenge made by Worcestershire closely to keep you updated on any new rulings made.

Advocacy Focus is keeping an eye on the outcome of this challenge and hope it will clarify where the responsibility lies.  This will avoid any confusion or delays in care for people leaving hospital after being detained under the Mental Health Act.