MHA 2025, S.117 and the deeming provision: have they gone and (not) done it again?

[TimGorvett]

Looking at the new 2025 MH Act which popped out by surprise just before Xmas-only 25 years in the making-but baffled by what I am seeing in s.46(3A) about the re-definition of ordinary residence and therefore the determination of s.117 aftercare duty. Have we not been here before, with the judgement in the Hertfordshire case?

The issue in Hertfordshire was that the aftercare duty was claimed to lie with another local social services authority, LBH&F, the placing one, because under the National Assistance Act 1948 then in force, the patient to whom the s.117 duty applied was deemed to be resident in that placing authority and not where they were actually living at the time the duty arose.

The downfall of this claim was that the deeming provision to which Hertfordshire made reference applied only for the purposes of the NAA and not for the purposes of the MHA 1983. The court duly ruled against them.

When the 2014 Care Act came in, everyone fell on s.39(1-6) of that Act as it appeared to create a deeming provision for residence in respect of s.117, making the duty land with the placing authority and not the one where the patient was actually living at the time the duty arose. It had to be pointed out that all it did was create a deeming provision for residence for the purposes of the Care Act, not for the MHA 1983. The Care & Support Statutory Guidance duly upheld this view.

Now we have the MHA 2025, s.46(3A)b of which states:

b) the following provisions apply for the purpose of determining the person’s ordinary residence at any time when they were aged 18 or over—

(i) section 39(1) to (6) of, and paragraphs 1(1), 2(1) and (2) and 8 of Schedule 1 to, the Care Act 2014;

The immediately relevant provisions being:

(1) Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations, and the adult is living in accommodation in England of a type so specified, the adult is to be treated for the purposes of this Part as ordinarily resident—

(a)in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations, or…

…and:

(4) An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed; and for that purpose—

(a) “local authority in England” means a local authority for the purposes of this Part, and

(b) [ditto the Social Services and Well-being (Wales) Act 2014.]

And so now at any time when we want to know how to treat of ordinary residence for an adult we know we definitely need to go to s.39(1-6) of the Care Act-all well and good.

But s.39 of the Care Act still says the same as it did in 2014, namely that a person’s residence is deemed to be in the placing authority and not the one where they are actually living-for the purposes of this Part, i.e. this part of the Care Act, just what it said back then.

Everyone is again talking as if this time, at last, a deeming provision for s.117 has been created, but how can this be? We have always had s.39 of the Care Act to refer to in the somewhat limited mental health situations where it applies-why does having a section of the MHA 2025 which expressly tells us to look at it, make any difference to what it says?

I have never doubted the willingness to wound of those parties who have always wanted to create a deeming provision for s.117-but I have always had serious doubts about their ability to strike-have they not just (not) done it again?

Or what am I missing here?

[SteveC (Steve Chamberlain)]

Surely the crucial change here is that for the first time the MHA (s117(3A)(d)) specifically creates a link back to the Care Act (or Welsh equivalent). In the previous iteration of the legislation there was no reference to the Care Act, and therefore no ability to link s117 responsibility to the Care Act ‘deeming’ provisions.

[ZacSussex (Zac)]

My understanding (subject to correction) is that this amendment is intended to bring the s.117 ordinary residence test into alignment with the Care Act 2014 deeming regime.

Currently, S.117(3) MHA 1983 and S.39 CA 2014 are distinct deeming provisions. If the care was CA funded, S.39 applied. If the care was MHA funded, S.117(3) applied. Because of this, authorities ran into confusing funding disputes.

In Worcestershire, the Supreme Court confirmed that s.117 responsibility is determined by reference to ordinary residence immediately before the relevant detention, and rejected the notion of a free-standing “continuing duty”. That meant that where Authority A had placed someone in Authority B under s.117, that person became ordinarily resident in Authority B therefore responsibility shifted to them if the person was re-detained.

That is entirely different to how the “placing-authority” model works under the Care Act.

By importing s.39 of the Care Act into the MHA ordinary residence determination, the 2025 amendment deems a person placed by Authority A to remain ordinarily resident in Authority A, notwithstanding placement in Authority B, even if re-detained. That effectively restores the placing-authority model. I don’t think anyone will be litigating under the “this act only” wording - it’s very clear what the intention is.

[Richard_Rook]

Interesting. But I think the difference this time is the opening words of the new s117(3A), as inserted by s46(3) MHA 2025, which say:

“(3A) In applying subsection (3) for the purpose of determining the local social services authority in relation to a person—”

Those words would be meaningless in the case of adults if the wording of s39 of the Care Act were then to be taken as meaning that it could not apply to decisions under s117.

Maybe a more cautious draftsperson would have written something like “s39(1) (omitting the words “for the purposes of the Part”)”, but it probably wasn’t necessary. Parliament is assumed by the courts not to have enacted nonsense, and the intended meaning is clear, so I doubt there is any real ambiguity in practice.

[TimGorvett]

Thanks everyone for the suggestions-I’m not convinced, however.

I quite agree that the 2025 Act makes an explicit link with s.39 of the Care Act, but were they not linked before? The question is, what is the nature of that link, and does it do something to change the wording of the Care Act, such as to disturb the reasoning in Hertfordshire, I am not sure that it does.

The point about intention is more powerful, I accept; but it will only apply, surely, should there be any want of clarity in the language of the statute, which I am suggesting there is not. Having looked at Hansard, moreover, I am not so sure the very few Members who expressed a view were quite clear as to what their intention was-they meant to tidy up the process for determining OR in s.117 cases, because they had been told it was ambiguous, but how to do this, I fear they did not exactly know. One of them at least was worried that any significant changes in the process of determination would prove excessively onerous, which as we know it will be, and was reassured by talk of the revised Code of Practice!

The question of intention came up last time, moreover, in 2014, and as I recall it turned out not to be so clear as everyone thought.

As to the amendment amounting to nonsense, if it does not amount to a new deeming provision, this is slightly in contradiction with Steve’s point-if there is any value in making the link explicit at all, which there may be, why would it not be sensible to do so?

In any event I think that would only be the case, that nonsense would result, if the present provisions in s.39 CA were already nonsensical, which they are not. The effect of s.46(3A) is surely to draw attention to them, they are quite clear, and in relation to how they determine s.117 aftercare duty, the court in Hertfordshire found them to be so, at least in their NAA form. They haven’t changed, and I can’t see how s.46(3A) changes them.

Worcestershire is a bit of a red herring, I think, as although it might well have had the same general effect, it was about another point in law altogether, this business of when the s.117 duty ends, which we’d made a matter of habitual practice rather than of clear legal obligation. At least that one is knocked on the head now.

[ZacSussex (Zac)]

There are two “Hertfordshire” cases so I will set out my answer comprehensively.

In R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77, the applicant sought a declaration that “resident” under S.117(3) had the same meaning as “ordinarily resident” in the NAA 1984. Note that this case is irrelevant now as S.75(3) Care Act 2014 amended S.117(3)(a)-(c) MHA 1983 to reflect the same “ordinarily resident” wording. This is important because it explicitly decided that deeming provisions in another statute do not apply to S.117 unless expressly incorporated.

In R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712, the CoA decided that as a person was bound by a condition under S.41 MHA 1983 to reside in an accommodation in Authority B, that residence could not be treated as “voluntary” as per the test in ex parte Shah, and therefore Authority A (the placing authority) retained responsibility.

I disagree that Worcestershire is a red herring. The Worcestershire case confirmed that S.117(3) (as amended by the Care Act 2014) made no provision for any “continuing duty” (unlike the Care Act’s “placing authority” model).

Taking all these cases, the position can be summarised as follows:

1. The 2011 Hertfordshire case is now irrelevant as S.117(3) was subsequently amended by the Care Act to reflect the “ordinarily resident” wording.
2. The 2014 Hertfordshire case is technically still good law.
3. The Worcestershire case confirmed that “ordinarily resident” in S.117(3) is given its ordinary meaning and there is no continuing duty (unlike S.39 CA 2014).

Therefore the MHA 2025 sets out what it intended to achieve by moving away from the “ordinarily resident” wording currently in S.117(3), and instead importing S.39 CA 2014 to simplify determination of the responsible authority. They were not linked before (as reflected in Hertfordshire and Worcestershire), but once s.46(3A) is enacted, they will be linked & expressly incorporated.

[TimGorvett]

Thanks again for this, Zac, and a very helpful summary of the prior case-law, which I think we’d agree mostly pulled in the direction of there being no deeming provision, however.

As to that, everything therefore seems to come down again to this “linkage” to which Steve adverted earlier, and which I see can be more exactly described as incorporation, the

“method of making one document …become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein.” (Black’s Law Dictionary 5^th ed. 1979).

If s.39(1-6) of the Care Act 2014 is incorporated, then, or if you like expressly incorporated, into the MHA by way of s.46(3A), then it must carry over its current wording-including the OR deeming provision described as being for the purposes of that Part of that 2014 Act. I still do not see how the part of s.39(1-6) which refers to how OR should be deemed to be in the placing authority can be held to have been incorporated, without also incorporating the part which says that it holds only for the purposes of the 2014 Act.

Are you saying that the meaning of s.39(1-6) has actually been changed, by being incorporated into the MHA? By what means is that accomplished, I wonder? What parts of it remain the same, and what parts are different?

[ZacSussex (Zac)]

I think it’s very clear what Parliament’s intention is. S.46(3A)(b) states “the following provisions apply for the purpose of determining the person’s ordinary residence” then refers to S39(1)-(6) CA 2014.

If the intention is clear but (if, as you say) the wording precludes it entirely, then as Richard explained it would be nonsensical. If it were ever litigated, the courts would almost certainly give it its purposive meaning to avoid absurdity (see para 43 of R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28).

I understand the thrust of your argument. It could be worded slightly better, but I think a plain reading makes sense.

[TimGorvett]

Thanks once again for your forbearance with this question. I wonder if this will have to be litigated.

Because it seems to me there are at least two possible ways of understanding what is happening here.

According to the first, and for reasons which seemed good to legislators, a provision in the Care Act which had a clear meaning for s.117 aftercare between 2014 and now, but which was never previously mentioned in the 1983 Act itself, has been plainly and explicitly included in that latter Act, without changing the meaning that it has had during all that time.

This would be a little odd, but would have the effect of leaving s.117 without a deeming provision, and might have had some advantage, given recent tergiversations about s.117 duty, in making the existing link secure at both ends. It would not, I submit, be nonsensical.

According to the second, and for equally good reasons, a deeming provision for s.117 was introduced into the MHA, by the quite peculiar method of incorporating from another Act the very same language, which until then had ensured that there was no deeming provision. If there is something in the process of incorporation which has this effect, it is so opaque that it may need a debate about intention, at the very least, to elucidate.

I think this would be even odder.

After all, isn’t the challenge to say why, if a deeming provision for OR in relation to s.117 was intended, new, plain words to that effect, of the sort that parliamentary drafters had found already for the NAA 1948 and the Care Act 2014, were not included directly in the MHA itself?

A simple s.117(3)(d), or a s.117C, just like s.24(5) of the 1948 Act, plainly stating what was intended as to the deeming of OR, in this case for the purposes of the MHA?

[Richard_Rook]

There’s not really anything peculiar about a provision in one Act which says that the provisions of another Act are to apply. It’s a standard drafting device (see s55(7) MHA for an existing example). In part it’s a way of reducing the number of amendments that have to be made if the applied provision (in this case the deeming provisions in the Care Act) are themselves later amended, and thereby reducing the risk of regimes diverging unintentionally.

[Jonathan]

I’ve not got round to this change in my Mental Health Act 2025 Overview series of pages. Maybe I’ll do it next!

I agree with the replies above. The intention must have been that the introductory text in new s117(3A) trumps the words “for the purposes of this Part” in the Care Act provisions. I really can’t see a court deciding that s117(3A)(b)(i) has no effect just because those words were not expressly disapplied.

[TimGorvett]

I shall be very interested, Jonathan, to see how you gloss this provision in your series!

Because I also agree with the reply to my last-Richard supplies very helpfully a reason why they would put something in the MHA 2025 binding into that Act the provisions of s.39(1-6) of the Care Act as they stand, namely that it ensures that if the Care Act provision changes later, the MHA will track it, and not diverge.

I must admit this part of the thing had puzzled me-if the meaning doesn’t change, why not just leave it alone?-and this does supply a fair rationale for doing it, by way of a standard parliamentary drafting device.

But it still leaves us with the problem that s.39(1-6) is incorporated with its present meaning, i.e. that there is no deeming provision for s.117, surely?

If the meaning of s.39(1-6) for the MHA has changed, in effect to mean the opposite of what it means now, my original question stands-how has this been accomplished? By intention alone?

If that were the intention, why not just do as I suggest, and have a simple deeming provision stated in the MHA? It’s no trouble after all-you are amending the MHA already, and with a lot of stuff much less important than s.117 aftercare, I would submit.

[SteveC (Steve Chamberlain)]

Maybe I’m being a bit naive, but I don’t see the problem here.

@TimGorvett

But it still leaves us with the problem that s.39(1-6) is incorporated with its present meaning, i.e. that there is no deeming provision for s.117, surely?

The Care Act doesn’t need to create a link to the MHA as that is the original legislation. You seem to be suggesting that unless the MHA creates its own stand-alone ‘deeming’ provision, then both Care Act and MHA need to have a legislative link. Once the MHA has created the link, which seems to me to be sufficiently set out in s117(3A) then the determination of OR for the purposes of s117 aftercare will be linked to the Care Act rules.

[TimGorvett]

I think the question is, Steve, what is the mechanism by which the current meaning of s.39(1-6) of the Care Act is reversed?

Is it achieved by way of “linkage”, is it “incorporation”, is it something to do with having related provisions in both Acts, or does it happen in some other way, and in any case how?

Is it simply down to intention, even if that could be shown, which would be extraordinary?

We’ve all been here before, after all, when everyone thought a s.117 deeming provision had been introduced by the 2014 Act, and it was shown that it had not.

By the way, as the MHA 1983 concerns the most important duties owed, and powers exercised, by any local authority towards an individual outside time of war, the s.47 child protection duty apart, and as the s.117 aftercare duty itself is a very remarkable one, I would not think it at all odd to find a deeming provision in connection with it expressly stated in the Act itself, and not cobbled together out of bits of another one-in fact I might expect it, and think others would too.

But as the Nottingham case is now showing, the meaning of s.117 is more or less disregarded in many quarters!