DHSC’s position on the determination of ordinary residence disputes in light of the outcome of the Worcestershire case
Updated 27 September 2024
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On 10 August 2023, judgment was handed down by the Supreme Court in R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council [2023] UKSC 31 (‘the Worcestershire case’). This concerned the meaning of ‘ordinary residence’ for the purposes of aftercare under section 117 of the Mental Health Act 1983.
This page will continue to be updated as required.
Stayed decisions
When the Worcestershire case proceedings began, the Department of Health and Social Care (DHSC) confirmed that it would be staying the determination of ordinary residence disputes that raised similar issues to those in the Worcestershire case, until the outcome of that case has been decided.
As the judgement has now been handed down, DHSC is working through the stayed cases in the order in which they were referred, with a view to issuing determinations as soon as we are able to do so.
If in light of the judgment in the Worcestershire case, you feel that a determination on a stayed case is no longer needed, contact ordinaryresidencereferrals@dhsc.gov.uk as soon as possible.
We will continue to accept new referrals in line with the Care and Support (Disputes between Local Authorities) Regulations 2014/2829 while we work through previously stayed cases.
Paragraphs 19.62 to 19.68 of the Care and support statutory guidance
DHSC does not intend to amend paragraphs 19.62 to 19.68 of the Care and support statutory guidance in light of the Worcestershire decision. These paragraphs reflect the current legal position and so do not need to be amended.
Paragraph 58 of the Worcestershire judgement
DHSC does not intend to amend the Care and support statutory guidance to address paragraph 58 of the Worcestershire judgement at this time.
Integrated care boards
The rules concerning integrated care board (ICB) responsibilities for section 117 aftercare can be found in the National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022 (the ICB regulations). The position in the regulations, under which the originating ICB retains responsibility for aftercare during subsequent detentions, even if the patient moves to a different part of the country, is not affected by the Worcestershire decision. This is covered in the updated NHS Who Pays? guidance published in March 2024.