In a perhaps slightly curious development in 2020, the DHSC decided that its own statutory guidance (accompanying the Care Act) was wrong in relation to ordinary residence and s.117 MHA 1983. In judicial review proceedings concluded (at least for now) on 22 March 2021, the Administrative Court has found that the DHSC’s approach was wrong, and that set out in the original statutory guidance was correct. The decision in question is that of Linden J in R(Worcestershire County Council) v Secretary of State for Health and Social Care  EWHC 682 (Admin).
The SSHC originally determined a dispute about ordinary residence between Swindon and Worcestershire on the basis that the person in question, JG, was ordinarily resident in Swindon as she had been living there immediately before the second period of detention she was subject to under the MHA 1983. This conclusion was also in accordance with the SSHSC’s statutory guidance “Care and support statutory guidance“ issued pursuant to section 78 Care Act 2014, at paragraphs 19.62-19.68 in particular. Swindon then sought a review, and the SSHC reversed the decision and found that JG had in fact been ordinarily resident in Worcestershire. In coming to this conclusion, the SSHSC acknowledged that:
The approach which I have taken is clearly at odds with parts of the Secretary of State’s Care Act Guidance, and in particular with paragraph 19.64 of that guidance. I have had regard to that guidance, but it cannot override what I regard as the correct interpretation of the relevant primary legislation and the case law. The Secretary of State is in the process of considering how the Care Act Guidance should be amended, on this and other related points, in light of the approach taken to this and a number of other similar cases.
In a very detailed judgment on the subsequent judicial review proceedings, Linden J concluded, in essence, that paragraph 19.64 of the Statutory Guidance was correct. It provides as follows:
Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the 1983 Act, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.
Linden J’s judgment is also useful for confirming the continuing nature of the s.117 duty and the positive steps that are required by the relevant bodies to determine that it has come to an end:
148. [….] as a matter of construction, sections 117(2) and (3) contemplate that one clinical commissioning group and one local services authority will owe the person described in section 117(1) the section 117(2) duty, and that they will become subject to that duty when it is triggered under section 117(1). The duty will be triggered by the discharge of the person from section 3 detention and their release from hospital, and there is therefore a need to identify which bodies owe the duty at this stage and on each occasion that this occurs. Absent the intervention of any further detention, the clinical commissioning group and local services authority for the area identified under section 117(3) will then continue to owe the duty until such time as there is a section 117(2) decision.
149. In a case where there is then a second period of detention under section 3, the question of after-care services will arise again when the person is due to be released and leave hospital. […] the clinical commissioning group and the local services authority identified by section 117(3) in respect of the second section 3 detention will owe the duty to provide after-care services arising out of that period of detention. If, at that point, the answer to the section 117(3) question has changed, for example because, immediately before the second period of detention, the person was no longer ordinarily resident in the area of the clinical commissioning group and the local services authority which previously provided after-care services, these bodies will not owe the section 117 duty which arises out of the second period of detention.
In the same vein, Linden J also held that:
152. […] even where there is a subsequent detention under section 3, a decision as to the discontinuation of after-care services whilst the person is in hospital is needed on the basis required by section 117(2). The decision may well be that the needs of the patient are being met by the hospital in the course of their treatment and that they therefore do not need after-care services, at least for the time being, given that a further decision as to their needs will be taken when they are due to leave hospital. This may well almost invariably be the position, but I have not been shown evidence which would enable me to say what sorts of situations typically arise and so I express no firm view.
153. What I do not accept is that Parliament intended that this would automatically be the position as soon as there was a further period of detention given the terms of section 117(2), and given that it is conceivable that there may be circumstances in which it is necessary to continue certain after-care services whilst the person is detained in hospital or at least for an initial period after admission. I consider that Mr Parkhill’s condition precedent argument is wrong as a matter of statutory construction, as I have explained. But it also introduces a lack of flexibility into a situation where the needs of the patient are required to be uppermost in the minds of the decision makers. The Defendant’s analysis, on the other hand, ensures that the professionals are in control and make decisions by reference to the person’s needs. I also consider that an analysis which maximises flexibility and prioritises the person’s needs, as well as continuity of care, is consistent with the pragmatic approach in R(B) v London Borough of Camden  EWHC 1366 - which, at the very least, encourages responsible bodies to plan ahead even where the section 117 duty has not yet arisen.
The DHSC has subsequently (21 April) confirmed that it is seeking to appeal and published a note setting out its position pending that appeal, materially that:
Ordinary residence disputes raising similar issues to those in the Worcestershire case will be stayed until we have final clarification as to the correct approach to ordinary residence for the purposes of section 117(3) of the Mental Health Act 1983.
As at 27 August 2021, permission has been granted, but no hearing date has been set.