# “Voluntary” in terms of Ordinary Residence?

**URL:** <https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184>\
**Category:** Mental Health Act\
**Tags:** aftercare\
**Created:** [22 August 2022 10:54 UTC](https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184 "2022-08-22T10:54:46Z")\
**Posts on this page:** 5\
**Page:** 1

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**Author:** ![ZacSussex](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/z/e8c25b/32.png) [@ZacSussex](https://forum.mentalhealthlaw.co.uk/u/ZacSussex)\
**Post date:** [22 August 2022 10:54 UTC](https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184/1 "2022-08-22T10:54:46Z")

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Hi All. Currently working on a s.117 dispute between LAs for a client. The issue has been boiled down to the meaning of “voluntary” within the Shah test for OR.

If one were to be homeless and placed in a hostel in another area, and they accepted this placement (with the only other option being homelessness) then would this fail the voluntary portion of the two-stage Shah test? What exactly constitutes residence being “voluntarily adopted”?

Does anyone have any case law at hand which addresses this in more detail? They have capacity so the [Cornwall](https://www.mhlo.uk/dg) case is of limited use.

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**Author:** ![SteveC](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/s/ecb155/32.png) [@SteveC](https://forum.mentalhealthlaw.co.uk/u/SteveC)\
**Post date:** [22 August 2022 11:09 UTC](https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184/2 "2022-08-22T11:09:08Z")

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Maybe I’m being a bit naive here, but it seems pretty clear to me. The person had the option of refusing the hostel and remaining homeless, however brutal and unpleasant that sounds. Given the statement that the person had capacity regarding their accommodation at the time (and presumably there were no CJ or MHA restrictions), it seems clear to me that the hostel place was voluntarily adopted.

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**Author:** ![ZacSussex](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/z/e8c25b/32.png) [@ZacSussex](https://forum.mentalhealthlaw.co.uk/u/ZacSussex)\
**Post date:** [22 August 2022 11:47 UTC](https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184/3 "2022-08-22T11:47:35Z")

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Hi Steve. I think you may be right - I’ve found this excerpt from Mohammed v Hammersmith and  
Fulham LBC [2002] 1 AC 547:

> “So long as that place where he eats and sleeps is voluntarily accepted  
> by him, the reason why he is there rather than somewhere else does not  
> prevent that place from being his normal residence. He may not like it, he may  
> prefer some other place, but that place is for the relevant time the place where  
> he normally resides”

It was throwing me as I was unsure whether the pressure to accept accommodation would skew the “voluntary” adoption of temporary accommodation. He didn’t have another realistic option at the time. As a matter of public policy - it also seems unfortunate for the second locality to burden the s.117 responsibility. Was looking for some kind of case law to make a cogent argument.

Many thanks for your input.

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**Author:** ![SteveC](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/s/ecb155/32.png) [@SteveC](https://forum.mentalhealthlaw.co.uk/u/SteveC)\
**Post date:** [22 August 2022 11:59 UTC](https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184/4 "2022-08-22T11:59:08Z")

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There was no s117 ‘burden’ placed on the second locality, because I assume the person’s qualifying detention will have occurred after they moved into the hostel. It just so happened that they needed detention in hospital while living in that place.  
If the person was subject to s117 prior to placement in the hostel, then that’s a completely different matter, as it does not simply move with the individual.

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**Author:** ![ZacSussex](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/z/e8c25b/32.png) [@ZacSussex](https://forum.mentalhealthlaw.co.uk/u/ZacSussex)\
**Post date:** [22 August 2022 12:20 UTC](https://forum.mentalhealthlaw.co.uk/t/voluntary-in-terms-of-ordinary-residence/1184/5 "2022-08-22T12:20:18Z")

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There was no S.117 burden before otherwise I would’ve referred to the [Worcestershire](https://www.mentalhealthlaw.co.uk/R_(Worcestershire_County_Council)_v_SSHSC_(2021)_EWCA_Civ_1957) Case, but he had community MH assistance (which may be partly why the second locality is denying responsibility). Either way, I agree there’s no impact on who is responsible.

Thanks Steve.