Ordinary residence

This page needs to be updated. See Which authority pays for aftercare for some more up-to-date information in the context of s117.

This page contains links to information on this important concept in community care law.

Legislation

• Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010

• Ordinary Residence Disputes (Community Care (Delayed Discharges etc. Act 2003) Directions 2010

• Ordinary Residence Disputes (Mental Capacity Act 2005) Directions 2010

Case law

See:

• Category:After-care
• R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77

• R (M) v Hammersmith and Fulham LBC and Sutton LBC [2010] EWHC 562 (Admin)

External links

Government website: 'Identifying the ordinary residence of people in need of community care services' page

• Dept of Health, 'Ordinary residence: guidance on the identification of the ordinary residence of people in need of community care services, England' (15/4/11). 'The Ordinary Residence Guidance has been updated on 15/4/11, to provide revised guidance on people receiving NHS continuing health care immediately before 19/4/10, when certain changes to the legislation came into effect, and also on people from overseas.' (DH)

• Cross-border arrangements between England and Wales - published 19/3/10 - These arrangements set out which ordinary residence disputes are to be determined by the Secretary of State and which are to be determined by Welsh Ministers.

• Department of Health, 'Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England' (October 2013)†

INFORMATION

• Representation
  • The role of the mental health lawyer
  • Ethical and other conduct guidance for lawyers
  • Case preparation
• Civil sections and CTOs
  • Section 2: admission for assessment
  • Section 3: admission for treatment
  • Section 4: emergency admission for assessment
  • Section 5: holding powers
  • Section 7: guardianship
  • Community Treatment Order
• Criminal detaining sections
  • Section 37: hospital order
  • Section 37/41: hospital order with restrictions
  • Sections 47, 48 and 49: transferred prisoners
  • Prison sentences
  • Notional s37
  • Section 45A: hospital direction
  • Section 38: interim hospital order
  • Section 135: Warrant to search for and remove patients
  • Section 136: Mentally disordered persons found in public places
  • Section 35: Remand to hospital for report on accused’s mental condition
  • Section 36: Remand of accused person to hospital for treatment
  • Section 37: guardianship order
  • Section 43: committal by magistrates for restriction order
  • Section 44: committal to hospital under s43
  • Section 51(5): hospital order without conviction
  • Detention under insanity legislation
  • Admission order
• Aftercare
  • Patients who are eligible for aftercare
  • The aftercare duty and its duration
  • The definition of aftercare
  • Charging for aftercare services
  • Which authority pays for aftercare
  • Ordinary residence ...
• Mental Health Tribunal
  • Tribunal Rules
  • Preliminary legal points
    • Standard and burden of proof (MHT)
    • Delay (MHT)
    • Re-sectioning after tribunal discharge
  • Tribunal eligibility
    • Eligibility periods
    • Change in status during tribunal proceedings
  • Commentary on some FTT matters
    • Overriding objective (MHT)
    • Applications (MHT)
    • Parties (MHT)
    • Victims (MHT)
    • Representatives (MHT)
    • Notice of proceedings, and listing (MHT)
    • Medical examination (MHT)
    • Remote hearings (MHT)
    • Recording of hearings (MHT)
    • Disposal without hearing (MHT)
    • Hearing in a party’s absence (MHT)
    • Decisions by a single judge (MHT)
    • Reports (MHT)
    • Evidence (MHT)
    • Non-disclosure of documents and information (MHT)
    • Directions (MHT)
    • Adjournment and postponement (MHT)
    • Withdrawal (MHT)
    • Reinstatement (MHT)
    • Decisions (MHT)
    • Public hearing (MHT)
    • Wasted costs (MHT)
    • Appealing against a tribunal decision (MHT)
• Mandatory and discretionary references
• Nearest relative
  • Patients who have a nearest relative
  • Identification of nearest relative
  • Nearest relative powers
    • Nearest relative powers - introduction
    • Nearest relative's right to receive information
    • Right to apply to Tribunal
    • Right to be consulted and to object to s3 admission
    • Right to discharge from guardianship
    • Right to request discharge of s2 or s3 or CTO
    • Dangerousness criterion
  • Changing the nearest relative
    • Delegation by existing nearest relative
    • Displacement (appointment) by county court
  • Nearest relative - miscellaneous
• Legal Aid
  • Contracts
    • Standard Civil Contract 2014
    • Standard Civil Contract 2018
    • Standard Civil Contract 2024
  • Main types of funding
    • Certificated (licenced) work
    • Controlled work
  • Legal Aid eligibility
    • Merits tests
    • Means testing
  • The scheme
    • The mental health fee scheme
    • Hourly rates and fixed fees
    • Escape fee cases
    • Legal Aid for appeals
    • Disbursements, including independent experts
  • Other pages
    • Peer review
    • Transaction criteria
    • Legal Aid in the Court of Protection
    • Legal Aid Agency Liverpool Office
    • Legal Aid forms
    • Legal Aid guidance documents
  • Legal Aid archive
    • Legal Aid information archive
    • Legal Aid News archive
    • Non-means-tested non-tribunal matters
    • Residence test
• International law
  • The ECHR and mental health law
  • The CRPD and mental health law

---

• Changes made by MHA 2007
  • 16- or 17-year-old with capacity cannot be detained on basis of parental consent
  • Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
  • Additional safeguards for ECT introduced in new s58A
  • Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
  • Approved Mental Health Professional replaces Approved Social Worker
  • Automatic reference scheme under s68 changed
  • Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
  • Civil partners are treated as if married when determining nearest relative
  • Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
  • Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
  • Fundamental principles set out in Act and included in Code of Practice
  • Higher penalties for offences under Act
  • Hospital direction patients can no longer apply to Tribunal during first six months
  • Hospital directions under s45A apply to any mental disorder
  • Legal status of Code of Practice set out in Act
  • Limitation to the exceptions to the duty to instruct IMCA
  • Mental disorder no longer split into separate classifications
  • Minor drafting error in MCA 2005 corrected
  • New cross-border arrangements for leave and transfer
  • New definition of medical treatment
  • New Independent Mental Health Advocate scheme
  • New procedure for renewal of detention
  • New regulations on conflicts of interest
  • New requirements for age-appropriate accommodation for children
  • NHS Foundation Trusts discharge power problem remedied
  • Organisation of Mental Health Review Tribunal changed
  • Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
  • Patients can be transferred between places of safety under s135 and s136
  • Procedure for making of instruments by Welsh Ministers set out
  • Reference to Local Health Boards inserted into Act
  • Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
  • Restriction orders can no longer be time-limited
  • SOAD certificate becomes invalid when patient loses or gains capacity
  • Some exclusions to definition of mental disorder have been removed
  • Supervised Community Treatment replaces Supervised Discharge
  • Transitional provisions until full implementation of MHA 2007
  • Treatment while under SCT is covered by new Part 4A
• Coronavirus
  • Coronavirus resources
  • Court of Protection and coronavirus
  • Legal Aid and coronavirus
  • Mental capacity and coronavirus
  • Mental Health Tribunal and coronavirus
  • MHRT for Wales and coronavirus
  • MHT for Scotland and coronavirus
  • Remote assessments and coronavirus
• Courts
  • Court of Protection
  • Hospital Managers' Hearing
  • House of Lords
  • Inquests
  • Mental Health Review Tribunal
  • Mental Health Review Tribunal for Wales
  • Mental Health Tribunal
  • Parole Board
  • Upper Tribunal
• Forms
  • Court of Protection forms
  • Judicial review forms
  • Mental Health Act 1983 Statutory Forms
  • Tribunal forms
• General information pages
  • Children and mental health law
  • Civil restraint order
  • Complaints procedure
  • Consultations
  • Electronic signatures
  • Euthanasia and assisted suicide
  • Ian Brady
  • Independent investigations
  • Jury service
  • Leave of absence
  • Mental disorder and driving
  • Ministry of Justice
  • Miscellaneous external links
  • Murder
  • Newsletters
  • Nuisance or disturbance on hospital premises
  • Power to specify hospital units
  • Public tribunal hearings
  • Repatriation
  • Reports to Prevent Future Deaths
  • Smoking
  • Summary of routes to discharge
  • Summary of types of detention
  • Transfer
  • Victims of crime
  • Victims' rights to make representations and receive information
  • Voting rights for detained patients
  • Welfare benefits
• Glossary pages
  • Glossary
  • Key sources of information
  • Other glossary pages
    • Adult Social Care
    • Advance decision
    • Application of MHA 1983 to Armed Forces
    • Barring order
    • Brief glossary
    • British National Formulary
    • Care Programme Approach
    • Compulsory treatment
    • Displacement proceedings
    • Enduring Power of Attorney
    • Extra-statutory recommendations
    • Guardianship
    • High secure hospital
    • Home Office Circulars
    • IPP
    • Judicial review
    • Judicial review pre-action protocol
    • Lasting Power of Attorney
    • Learning disability
    • Mental disorder
    • Part 36
    • Prison law
    • Recall
    • Recommendations
    • Responsible authority
    • Sexual Harm Prevention Order
  • Professionals
    • Appropriate adult
    • Approved Mental Health Professional
    • Approved Social Worker
    • Independent Mental Capacity Advocate service
    • Independent Mental Health Advocate service
    • Responsible Clinician
    • Responsible Medical Officer
    • Second Opinion Appointed Doctor
  • Types of detention
    • All types of detention
    • Summary of the detaining sections
  • Types of discharge
    • Deferred discharge
    • Deferred discharge of unrestricted patient
    • Full discharge of unrestricted patient
    • Summary of types of discharge
    • Supervised discharge
  • Types of patient
    • Restricted patient
    • Technical lifer status
    • Unrestricted patient
• Legislation overviews
  • Mental Capacity Act 2005 Overview
  • Mental Health Act 1983 Overview
  • Mental Health Act 2007 in force dates
  • Mental Health Act 2007 Overview
• Mental capacity law
  • Capacity to consent to sexual relations
  • Court of Protection Practice Directions
  • Deprivation of Liberty Safeguards
  • Interface between MHA and MCA
  • Liberty Protection Safeguards
• Organisations
  • Administrative Justice and Tribunals Council
  • All Party Parliamentary Group on Legal Aid
  • Care and Social Services Inspectorate Wales
  • Care Services Improvement Partnership
  • Civil Contracts Consultative Group
  • Commission for Social Care Inspection
  • Community Care (company)
  • Court of Protection User Group
  • Crown Prosecution Service
  • Department of Health and Social Care
  • Essex Mental Health Independent Inquiry
  • European Union Agency for Fundamental Rights
  • Family Law Week
  • Fixated Threat Assessment Centre
  • General Medical Council
  • Gov.uk website
  • Health Professions Council
  • Healthcare Commission
  • Healthcare Inspectorate Wales
  • House of Lords Select Committee on the Mental Capacity Act 2005
  • HUDOC
  • International Classification of Diseases (ICD)
  • International Journal of Mental Health and Capacity Law
  • Joint Committee on the Draft Mental Health Bill
  • Judiciary
  • Law Commission
  • Legal Ombudsman
  • Legislation.gov.uk
  • MAPPA
  • Mental Health Act Commission
  • Mental Health Lawyers Association
  • National Confidential Inquiry into Suicide and Safety in Mental Health
  • National Mental Health Development Unit
  • National Policing Improvement Agency
  • Office of Fair Trading
  • Office of Public Sector Information
  • Office of the Public Guardian
  • Official Solicitor
  • PPMHG
  • Royal College of Psychiatrists
  • Solicitors Regulation Authority
  • Statute Law Database
  • Tribunal Procedure Committee
  • Venice Commission
  • Care Quality Commission pages
    • Care Quality Commission
    • CQC - DOLS reports
    • CQC - MHA reports
    • CQC - Other links
    • CQC - State of Care reports
    • CQC - Surveys
  • Charities
    • Bailii
    • Incorporated Council of Law Reporting
    • Inquest (Charity)
    • Mind (Charity)
    • Rethink Mental Illness
    • Social Care Institute for Excellence
• Other jurisdictions
  • Northern Ireland
    • Mental health law in Northern Ireland
    • Review Tribunal (Northern Ireland)
  • Scotland
    • Mental health law in Scotland
    • Mental Health Tribunal for Scotland
    • Mental Welfare Commission for Scotland
  • Southern Ireland
    • Mental health law in Southern Ireland
  • Wales
    • Mental health law in Wales
    • Welsh Assembly emails archive (2010-2012)
• Psychiatry
  • Psychiatric information
  • Psychiatric medication
  • Definition of mental disorder
  • Covert administration of medication
  • Dual diagnosis
  • Insight
  • Psychopathic disorder
  • Treatability test
  • Improving Access to Psychological Therapies
  • Consent to treatment provisions
• Statistics
  • Statistics - Ethnicity
  • Statistics - Ministry of Justice
  • Statistics - Miscellaneous
  • Statistics - NHS Digital - Detention and CTO
  • Statistics - NHS Digital - DOLS
  • Statistics - NHS Digital - Guardianship
  • Statistics - NHS Digital - Other
  • Statistics - Tribunal
  • Statistics - Welsh Assembly Government
• The Law Society
  • Law Society
  • Law Society mental capacity (welfare) accreditation scheme
  • Law Society mental health accreditation scheme
  • Law Society mental health accreditation scheme - CPD requirements
  • Law Society mental health accreditation scheme - guidance documents
• Things to sign up for
  • CPD scheme
  • Email updates
  • Online forum
  • Subscriptions

What links here:

• MHA 1983 s117
• Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010
• Ordinary Residence Disputes (Community Care (Delayed Discharges etc. Act 2003) Directions 2010
• Ordinary Residence Disputes (Mental Capacity Act 2005) Directions 2010
• R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77