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

Law and practice Mental Health Act
1

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?

2

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.

3

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.

4

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.