M, R (on the application of) v London Borough of Hammersmith and Fulham & Anor

MR JUSTICE MITTING: This case concerns which local authority is responsible for meeting the accommodation costs of an individual detained under section 3 of the Mental Health Act 1983 who is then discharged back into the community. In one case the issue is live. I will deal with the factual circumstances of that case in a moment. In the other, between Hertfordshire and London Borough of Hammersmith and Fulham, it is no longer live but the question of principle remains of interest to both authorities.

The case in which the issue is live concerns a 61 year old man identified in these proceedings as JM. As a result of long term alcohol abuse he suffers from significant cognitive impairment and a disorder diagnosed as Korsakoff's psychosis. He is of Irish origin but for the 15 years between 1991 and 2006 lived in the London Borough of Hammersmith and Fulham in a one bedroomed council owned flat.

Unsurprisingly in the light of his condition, for most of those years he had regular interaction with the Hammersmith and Fulham social care services. On 24th December 2006, he was involved in a serious road traffic accident and was hospitalised for three months. On discharge, he was provided with accommodation in a residential care home in Hammersmith and Fulham but the staff were unable to cope with him and his placement failed. He was then transferred to a wet hostel within the borough where he was involved in two more road accidents. That placement, too, failed.

On 31st July 2007, he was transferred to a house known as Ronau House in the London Borough of Sutton. He stayed there until 22nd January 2008, apart from two episodes when he left the house for a short period. During one of them, in September 2007, he returned to Hammersmith and slept rough. Meanwhile, and only eight days after his transfer to Ronau House, on the advice and with the support of his family, he signed a notice terminating his tenancy with the London Borough of Hammersmith and Fulham.

There is no evidence about his mental capacity to make a decision of that nature or about the advice or the reasons for it given to him by his family. There is no evidence, in short, upon which I could conclude that that was anything other than the voluntary act of a man with capacity to perform the act, albeit a capacity which was for many other purposes impaired.

On 22nd January 2008, JM was admitted to Sutton Hospital, a mental hospital, under section 2 of the Mental Health Act 1983, that is to say for assessment. The period of compulsory detention under that section cannot exceed 28 days. He remained in the hospital until 29th February 2008, a little over the 28 day period. The last week or so of his stay must therefore have been voluntary.

Meanwhile, those who then had the responsibility for his care, the Hammersmith and Fulham social services workers, and the operators of Ronau House, decided that it was not an appropriate placement for him. He was nevertheless discharged there from Sutton hospital. He was said to be in an uncertain frame of mind about where he should then go, having stated that he wished to return to his roots in Ireland. An alternative proposition was that a place would be found for him by Hammersmith and Fulham.

On 10th April 2008, he was readmitted to Sutton Hospital under section 3 of the Mental Health Act 1983, that is to say for treatment. The maximum period of compulsory detention under that section is six months. By 28th October 2008, his consultant psychiatrists considered that he was reaching a stage when his discharge from hospital could take place. He apparently expressed the wish to return to Hammersmith and Fulham. Not long after that, a dispute broke out between Hammersmith and Fulham and Sutton as to which authority was responsible for providing him with accommodation and services. That appears to have delayed his discharge.

On 23rd March 2009, he was discharged from Sutton Hospital to Kenilworth House in the London Borough of Ealing, where he now resides. I am told by Mr Fisher, who appears for him, that his placement at Kenilworth House has been successful and he is content to live there.

I now turn to the statutory schemes which govern responsibility for providing him with accommodation and services. At the point at which he was first transferred to Ronau House, it is common ground that Hammersmith and Fulham owed to him a duty under section 21 of the National Assistance Act 1948. That section provides:

What is a power in section 21 was in 1993 converted into a duty by dint of directions given by the Secretary of State under section 21. Paragraph 2(3) of the direction provided:

The duty which Hammersmith and Fulham accept they were under in relation to JM continued during his placement at Ronau House. It did so by virtue of a deeming provision in section 24(5) of the 1948 Act:

It is also common ground that that position was not disturbed by his admission on 22nd January 2008 under section 2 of the 1983 Act or, following his discharge from Sutton Hospital on 29th February 2008, during his resumed stay at Ronau House.

Ms Morris, for Hammersmith and Fulham, contends, however, that the position changed when he was admitted to Sutton Hospital. It changed because, she submits, the duty under section 21 thereupon ceased. Section 21(1)(a), as expanded by the Secretary of State's directions, only applies to individuals who by reason of age, illness, disability or any other circumstances are in need of care and attention "which is not otherwise available to them". Ms Morris' proposition is in my judgment unquestionably right. It has not been disputed by any other party to these proceedings.

A different statutory obligation arose when the time came for JM to be discharged from Sutton Hospital after his admission under section 3 of the 1983 Act. Section 117, whose ancestry can be traced back to the Mental Health (Amendment) Act of 1982, provides:

Subsection (3) identifies the local social services authority as "the local social services authority, for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained".

Section 117 accordingly applies to a number of categories of compulsorily detained patients: those admitted under section 3; those admitted compulsorily following a criminal case; those transferred from within the prison estate.

The effect of section 117 was considered by Scott Baker J, as he then was, in R v Mental Health Review Tribunal and others ex parte Hall [1999] 3 All ER 132. The patient in that case had been admitted in September 1971 to a mental hospital pursuant to a finding of not guilty of manslaughter by reason of insanity in a criminal case. He came before a Mental Health Review Tribunal in 1997. Satisfactory arrangements were not then in place for his admission to the community. An issue arose about which local authority was responsible for providing local social services to him. Up until 1991 he had resided in Torfaen but it was a condition of his discharge at that he could not live within a 20 mile radius of the point at which his offence had been committed, which meant that he could not return to live in Torfaen. Torfaen proposed to make arrangements that he should live in Monmouthshire.

The principal issue which the case decided was that section 117(3) required first of all to be identified, if possible, the local authority area in which the discharged patient had resided before he was admitted to hospital. Only if that was not possible did the default option of identifying the place to which he would be sent on discharge have effect. One of the reasons why Scott Baker J reached that conclusion was the need to plan for the release of the patient. In the course of his judgment, which on this issue focused upon the need to qualify the word "is" in section 117(3), he observed:

In this case, the original dispute between the parties focused upon the apparent difference between the word in section 117(3) "resident" and the words in section 21 and 24 of the 1948 Act "ordinarily resident". I should say a little about that difference.

It is now, and has been for many years, settled law that those words, absent a particular statutory context, have their ordinary English meaning and indeed that there is little, if any, perceptible difference between them. The leading case is Levene v Commissioners of Inland Revenue [1928] 1 AC 217, in which the taxpayer sought to minimise his UK tax obligations in respect of two different streams of income. One of them depended upon him establishing that he was not resident in the United Kingdom and the other that he was not ordinarily resident.

Viscount Cave observed that:

In the cases cited under the name R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309, Lord Scarman reiterated those propositions. He said that the natural and ordinary meaning of the words "ordinarily resident" had been authoritatively determined by the House of Lords in two tax cases of which Levene was one. He noted at page 342C that the House in the tax cases had declared its meaning in general terms not limited to the Income Tax Acts. At page 343G to H, he observed:

A different phrase has been considered by the House of Lords in a different context. In Mohammed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547, the House of Lords was required to consider the meaning of the words "normally resident" for the purposes of the Housing Act 1996. Lord Slynn, with whose opinion their Lordships unanimously agreed, observed:

There seems to me to be no perceptible difference between the three phrases, "resident", "ordinarily resident" and "normally resident". All three connote settled presence in a particular place other than under compulsion. Applying those tests to JM's circumstances and leaving aside the deeming provision in section 24(5) of the 1984 Act, JM was unquestionably resident at Ronau House when he was admitted to Sutton Hospital under section 3 of the 1983 Act. He had lived there for about a year, apart from the period when he was admitted to Sutton Hospital for five or so weeks under section 2 of the 1983 Act. He had abandoned his tenancy of the one bedroomed flat in Hammersmith. He had nowhere to live in Hammersmith. If anyone had asked him the question, and he had been capable of giving a rational answer to it, "where do you now reside?" on 9th April 2008, his answer could only have been "in Ronau House". If he had been asked "do you reside in Hammersmith and Fulham?" he might have said "I wish I did", but he could not sensibly have said "I do".

The question then arises, does the deeming provision in section 24(5) make any difference to a conclusion based on the ordinary meaning of the words in section 117? The only permissible answer as a matter of construction is that they do not. Section 24(5) expressly provides that a person provided with residential accommodation is only to be deemed "for the purposes of this Act" to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the accommodation was provided for him. Those words are unequivocal. What is deemed to occur for the purpose of the 1948 Act cannot be transposed into the 1983 Act. It could be by express statutory words, as indeed section 24(6) inserted by the Health and Social Care Act 2008, which is not yet in force, does when it provides that a person who is a patient in a hospital is to be deemed to be ordinarily resident in the area in which he was ordinarily resident immediately before he was admitted as a patient.

Mr Green, for Hertfordshire, supported by Ms Ward for Sutton and by Mr Fisher for JM himself, submit that that construction creates considerable practical problems for those charged with the management of discharged patients. I acknowledge that it does, but the fact that it does cannot lead to a construction of primary legislation which the wording of the legislation does not bear. It should also be remembered that section 117 does not only apply to those who are supported by a local authority under section 21 of the 1948 Act. It applies also to those discharged from mental hospitals who were admitted there as a result of a criminal process or of a transfer from a prison. It applies also to many people who do not require accommodation to be provided for them by a local authority but who have homes of their own and who are afflicted by mental illness.

It cannot be therefore be said that as a matter of construction Parliament must have intended, when it enacted section 117 or its predecessor in 1982, that the duties owed under the 1948 Act and section 117 should be congruent. If there is an anomaly it is for Parliament to correct. For those reasons, I uphold the constructions contended for by Hammersmith and Fulham and, subject to one point to which I will now turn, find in their favour on the issue which these cases raise.

A subsidiary argument advanced by Mr Green and supported by Ms Ward and Mr Fisher is that Sutton and Hertfordshire have a legitimate expectation that Hammersmith and Fulham will discharge the statutory obligation under section 117. The foundation for that submission is an agreement made between the Association of Metropolitan Authorities and the Association of County Councils in 1988. It is recorded in a document dated 11th February 1988 and was reissued in a document dated 4th October 1989. It was headed:

Applying those rules, the responsibility for accommodating JM would have fallen on Hammersmith and Fulham. Mr Green submits that those rules have been repeatedly mentioned in guidance issued by the Secretary of State. He draws attention to paragraph 24 of guidance LAC (93)7 of March 1993, which provides:

Ms Morris draws my attention to guidance which is, she says, going to be issued in two days time by the Department of Health touching upon this issue. It was preceded by draft guidance which she submits attracted little, if any, comment from local authorities. The guidance is to be contained in paragraphs 181 to 188 of the document. It draws attention to section 117 and to the fact that it sets out that the duty to provide services falls on authorities "for the area in which the person concerned is resident or to which the person is sent on discharge by the hospital in which the person is detained". In heavy type in paragraph 183 it notes:

Mr Green submits, on the basis of the evidence of Mr Bishop, the principal officer, Adult Care Services for Hertfordshire, a post which he has held since 1993 after a long career in social services, who expresses surprise at the attitude of Hammersmith and Fulham. He impliedly states that no local authority that he has ever encountered has taken the line that Hammersmith and Fulham has. Mr Chamberlain, who occupies a similar position in Hammersmith and Fulham, differs in that he says that on two occasions his own authority have adopted this stance and persuaded other local authorities to accept it; but, Mr Green says, Mr Chamberlain does not point to any instance of a decision of this kind having been made and accepted by another local authority when he was working for other local authorities such as Camden.

I accept that, if there were evidence that local authorities had consistently applied the 1988/89 agreement and it was established that it was lawful to accept financial responsibility for the costs of accommodation and services, Sutton and Hertfordshire could have established a legitimate expectation that Hammersmith and Fulham would comply with the agreement. The material which I have simply does not permit that conclusion. It is notable that, in response to the draft guidance circulated by the Department of Health last year, no local authority, let alone any association of local authorities, submitted to the Secretary of State that the guidance which he was proposing was unhelpful and unnecessary because they had already sorted this out between themselves in 1988 and consistently applied a practice which solved the problem. It may be that there is material which, if put before a court, would persuade a judge that the agreement has been universally and consistently fulfilled over the years, so as to give rise to that legitimate expectation, but the material which I have simply does not permit me to reach that conclusion.

Accordingly, and for the reasons which I have given, I hold that, in the case of him, Sutton was financially responsible for the cost of accommodating JM on his discharge from Sutton Hospital and that, on the issue of principle between Hertfordshire and Hammersmith and Fulham, Hammersmith and Fulham is right.

MR FISHER: My Lord, if I may, I wonder if your Lordship would be able to not identify Ronau and Kenilworth House in the judgment. Given that the claimant has been anonymised, in combination with the dates in which he went to those locations, he could be identified.

MR JUSTICE MITTING: By whom?

MR FISHER: (pause) Quite right, anyone reading the judgment, my Lord.

MR JUSTICE MITTING: Yes, I know, but the people with whom he will be concerned, fellow inhabitants of Kenilworth House, are not going to be reading this judgment.

MR FISHER: I am content.

MR JUSTICE MITTING: Any consequences that anyone wishes to address?

MR GREEN: After you.

MS MORRIS: Yes. My Lord, you will see that I touched upon the issue of costs at the conclusion of my skeleton argument and that might be a helpful place to start.

MR JUSTICE MITTING: Well, you have been on the wrong end of two bits of litigation, in both of which you have succeeded, where you were a defendant in both cases and you have not brought these cases.

MS MORRIS: Precisely, and there is two other particular additional factors, which is that we made part 36 offers to the parties in July of last year, which plainly were not accepted -- sorry, only to Hertfordshire.

MR JUSTICE MITTING: Right.

MS MORRIS: So that adds -- but I would say that the plain and simple rule is that we should have our costs because we have succeeded. There are --

MR JUSTICE MITTING: You are not seeking to add insult to injury by seeking indemnity costs, are you?

MS MORRIS: No, but what I would say is that there is perhaps an additional wrinkle in relation to JM's case, because, I do not know if this has become apparent from the case, at the beginning this case was in fact funded by Sutton and not by a public funding and so there is an additional complexity there. We would also say, as between us and Sutton plainly we have succeeded and effectively Sutton was the engine of the litigation.

MR JUSTICE MITTING: Well?

MR GREEN: Shall we take it in turns, my Lord?

MR JUSTICE MITTING: Yes, certainly.

MR GREEN: My Lord, the slightly more nuanced result of having had to bring the proceedings is that, having entered into a deed of indemnity, which is not a matter for your Lordship, with Hammersmith and Fulham to have the matter of MW determined by the Administrative Court, once our claim had -- we had actually gone to the expense of issuing proceedings and so forth, then Hammersmith and Fulham then conceded. So I think it is agreed between us that Hammersmith and Fulham, whether it needs an order or not, I think it is agreed --

MS MORRIS: It is quite clear in my skeleton argument, which is that you issued proceedings and we in short order wrote back, conceded the issue on the fact and agreed to pay your costs up to that date and invited you to withdraw the proceedings. What then happened was that you declined to withdraw, you were asked to become an interested party in the Sutton proceedings, you declined and indeed it was dealt with by an order of the court, and again I have dealt with that in my skeleton argument, and indeed the court left open the possibility of you putting your argument solely as an interested party, but the position of Hertfordshire was that they wished to continue and have their own case determined in addition to that of Sutton and that is why my client has been obliged to deal with both cases separately. So we have agreed to pay the costs up to the date when we conceded.

MR JUSTICE MITTING: Right, and no order is needed in respect of those costs, but what you seek is your costs after the date of concession?

MS MORRIS: Yes.

MR JUSTICE MITTING: Which is...?

MS MORRIS: It is probably -- I will have to go back to the --

MR JUSTICE MITTING: Put it in the order when it is drawn up. But, in principle, do you object to that?

MR GREEN: My Lord, no. I hope that all we have done is to sort of add the perspective of the interested party, but the concern was that the issue before the court, which has come before the court, might not have done, because there might have been difficulties with JM --

MR JUSTICE MITTING: Absolutely no criticism for contesting the litigation on the point with is remarkably unresolved in all these years, which it may have been necessary to resolve. But the loser pays. Right, so as between Hammersmith and Fulham and Hertfordshire, Hertfordshire will pay Hammersmith and Fulham's costs after the date of concession on the standard basis.

MR FISHER: My Lord, I also have an application for costs. Although it is unusual, as the successful claimant -- I am a successful claimant against Sutton and when these proceedings were first issued, they were not issued against Sutton, they were issued against London Borough of Hammersmith only, Sutton was subsequently made a defendant and in my submission rightly so. At the time when we issued proceedings, it was not entirely clear who proceedings should be issued against, but it was clear that proceedings needed to be issued in order to resolve the situation for JM. In those circumstances, I seek --

MR JUSTICE MITTING: You were never at risk of not being looked after, were you, in Ealing?

MR FISHER: My Lord, in January, when proceedings were issued, there was no resolution.

MS MORRIS: That is quite wrong. At that point, when proceedings were issued, my client had already offered to provide services, subject to an indemnity principle, and we made that abundantly clear in our response to the court.

MR FISHER: My Lord, looking through the Mental Health Tribunal records, it was always the case that the Mental Health Tribunal was going to make a decision based on the outcome of the judicial review proceedings. At a later stage, after a few Mental Health Tribunal proceedings had taken place, that is when, in my understanding, this offer was made. But from quite an early date judicial review proceedings were considered necessary.

MR JUSTICE MITTING: And then you got some accommodation out of it paid for by the local authority.

MR FISHER: That is correct, my Lord.

MR JUSTICE MITTING: And you might not have done had you not brought the proceedings when you did.

MR FISHER: That is correct.

MR JUSTICE MITTING: Right. Ms Ward.

MS WARD: If my Lord has the chronology in this case, it may be --

MR JUSTICE MITTING: Just let me turn it up a moment.

MS WARD: Unless there is a dispute, it may be quicker to do it by reference to that.

MR JUSTICE MITTING: Yes.

MS WARD: And you will see on the second page, the second entry -- sorry, it is the last page. I am sorry, mine is back to back, so I thought there was only two. The second entry is that the agreement to fund without prejudice did precede the issue of judicial review proceedings. It is right to say that Sutton funded the initial application for judicial review for the reasons subsequently set out in some detail in correspondence simply to get things moving, because there was a need to appoint the official solicitor before legal aid to be applied for. So it was agreed between the parties at that stage.

MR JUSTICE MITTING: Right. So when these judicial review proceedings were issued, they were not necessary to secure accommodation and so the Mental Health Review Tribunal had somewhere to which it could send JM, is that right?

MS WARD: There was an agreement. I was not involved in that --

MR JUSTICE MITTING: There was a agreement but nowhere had yet been identified.

MS WARD: Yes, certainly nowhere had been identified and I think the February Mental Health Review Tribunal shows someone has been identified but not yet visited.

MR JUSTICE MITTING: Yes, but that is the ordinary difficulty of identifying someone to accommodate a potentially difficult mental patient.

MS WARD: Yes. So, my Lord, that is how it works chronologically and, as I say, the explanation for Sutton funding the application for judicial review was that legal aid could not be applied for. It is understood legal aid could not be applied for until the official solicitor had been appointed, but it was simply to move matters along. So, my Lord, Sutton is here as a defendant. There has been a finding against it. Usually, the application for costs is from the other defendant, but I suspect I am going to have very great difficulty persuading you I should pay no costs at all.

MR JUSTICE MITTING: The real issue has always been between the two boroughs.

MS WARD: Yes. My Lord, that is right.

MR JUSTICE MITTING: Yes. I order you to pay Hammersmith and Fulham's costs on the standard basis. As far as the claimant's costs are concerned, there will be a public funding assessment of his costs. I am not satisfied that, at the stage when the judicial review proceedings were issued, they were necessary to secure accommodation for him, which was the object of the proceedings as far as he was concerned.

Is that it?

MS MORRIS: That is. Thank you very much.

MR GREEN: My Lord, not quite. Your Lordship may anticipate what is coming --

MR JUSTICE MITTING: Indeed.

MR GREEN: -- and I may anticipate the answer, but, my Lord, I think predominantly on the legitimate expectations point I would respectfully seek permission to appeal to the Court of Appeal. There is a different -- there is an issue as to whether the promulgation by local authorities themselves of clear and unambiguous rules itself then thereafter requires it to be shown that they have all thereafter followed them in order to succeed on the question of legitimate expectations. I accept your Lordship has observed there is some evidence but not as much evidence as might have been obtained on the point of whether they have been followed, but there is a real issue on to what extent that is necessary when, as the evidence stands before your Lordship, as between local authorities, rather than as between local authorities and the Department of Health, as between local authorities, the documented position is clear, unambiguous and clearly designed to be relied upon and to say it is antique, as my learned friend has, in my respectful submission there is a reasonable prospect the Court of Appeal might not find that submission dispositive.

MR JUSTICE MITTING: Attractively though that is put, I think it is essentially a question of the evidence assembled to demonstrate the proposition not being adequate and your proposition might, in another case, be proved to be right but it will be proved to be right on evidence different from that which I have considered. I do not accept your submission that there is a point of principle arising just from the 1988 agreement et cetera.

MS WARD: My Lord, if I might repeat the application in relation to the wider point of principle, simply to say this: it is a point that your Lordship has identified is not touched upon by previous authority and is of general significance to local authorities and for that reason I make the application.

MR JUSTICE MITTING: I accept that it is, but I do think, I am afraid, that the law, once I have understood it, as I now believe I have done, is very, very unlikely to be decided in a different way.

MS WARD: As long as the application is formally refused.

MR JUSTICE MITTING: Of course. (pause)

Thank you, all of you, for an interesting argument.