The health and social care secretary Matt Hancock has overhauled the government’s previous approach to determining ordinary residence in Mental Health Act 1983 (MHA) aftercare.
In five determinations of ordinary residence disputes between councils the secretary of state ruled the ordinary residence of a person receiving aftercare did not change, even if they were detained under the MHA on multiple occasions from different areas.
The previous policy was that a person placed for aftercare by a local authority in a different area would be ordinarily resident in the second area for the purposes of aftercare if they were detained for treatment a subsequent time.
The Department of Health and Social Care said the Care Act guidance position no longer represented the secretary of state’s view, and that the guidance would be updated pending the outcome of a legal challenge against once of the ordinary residence decisions published last week.
Worcestershire council has lodged the challenge after Hancock’s determination found that it was responsible for the aftercare of a woman after she was detained for treatment under the MHA while resident in a care home in Swindon, where she had been placed by Worcestershire for aftercare.
Under section 117 of the MHA, a person detained for treatment under the MHA is entitled to aftercare, commissioned jointly by a local authority and relevant NHS commissioning body, following discharge, until the two bodies are satisfied the person no longer needs it.
Under section 117(3), the relevant local authority is determined by the place where the person was ordinarily resident immediately before their detention for treatment. As confirmed by the Care Act guidance this remains the case even if they are discharged for aftercare to a different area, and even if they moved to a third area.
However, the Care Act guidance then goes on to say that if the person is detained again while receiving aftercare in a second or third area, it would be the local authority for this area that would take over responsibility for their aftercare.
The DHSC said that it would also defer any determinations on ordinary residence disputes between councils on this particular issue until the outcome of the case is known.
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