UF was 84 years old and had been diagnosed as suffering from vascular dementia. She was residing in a care home and a challenge under section 21A Mental Capacity Act 2005 to the standard authorisation of deprivation of liberty was launched by AF, UF’s daughter.
The issues to be decided by the court were:
1) Was it in UF’s best interests to return to her home to live with a contingency plan of maintaining her current placement for a period of time?
2) Should a direction be given to the Lasting Power of Attorney (“LPA”) finance about releasing equity from UF’s property to pay for her care?
3) Should the LPA holder, over finance, be replaced by a Deputy appointed by the Court?
4) Would any care regime at home still represent a deprivation of liberty?
UF had been admitted into a care home in a crisis situation but had been there now for many months. There was controversy within the family about the circumstances in which UF was admitted to The Elms in February 2013 – a family member admitted to an independent social worker that she “tricked” her mother into making the journey there. In March 2014 Theis J had directed that it would be lawful for the parties to make arrangements on UF’s behalf for her to have a trial period of being cared for in her own home, and to make arrangements so that all necessary care was delivered. That had not in fact happened, awaiting this fuller enquiry on the evidence.
UF’s children were now bitterly divided about the arrangments for UF’s care. The Official Solicitor, supported in the application by AF, advocated that it was in UF’s best interests to be permitted to return home as this was in accordance with UF’s wishes, the least restrictive option, and feasible, both practically and financially. However, the Official Solicitor recognised that UF may not in fact respond well to a return home and that this may also not last more than 12-14 months in any event, given that UF’s financial resources would expire by then. An independent social worker also produced a report for the court, favouring UF’s returning home. He marginally favoured UF returning home, describing this as “positive risk taking“.
X County Council advocated strongly that it was in UF’s best interests to remain at the care home, where she was being well cared for and where she had now settled. The view of X County Council was shared by four of UF’s other children.
The judge said this of the views of the most vehement family member:
“Her opinions (expressed both in writing and in oral evidence to me) tend to be dogmatic; she has a confident and unshakeable belief in the correctness of her own opinions, and believes that she has a particular and unique ability to assess the situation concerning her mother. She told me, when cross-examined by PK, that “I feel I know her (i.e. UF) better than anyone. We have a closeness which is envied by everyone. It is unrivalled…”. AF is unrepentantly critical of X County Council, and separately (and in similar measure) of the care regime at The Elms. Her evidence on some key issues lacked a degree of objectivity or nuance; this was not at all surprising given her understandable emotional investment in the issue and the outcome; however, I was left by the end of the hearing considering that I should treat her opinions with a little caution.”
The cost of the care home was £2,200 per month, which was largely paid by UF. The cost of the arrangement of placing UF back at home would be significantly more, at £7,583 per month. It was proposed that the cost of care would be met under a deferred payment agreement set up by the LPA finance holder, using her capital.
The court considered UF’s best interests; her wishes; her daily care needs; how her behaviours would be managed safely and consistently; her medical care; her socialisation; the financial implications of the options; the disruption of moving from the care home back to her own home and the distress caused by possible repeated moves; and the success of placement back at home was measured.
In considering whether the delivery of care to UF could be as effectively achieved in a way that was “less restrictive” of her rights and freedom of action than another, Mr Justice Cobb stated that:
“While the difference between living at home and living in a care home is one which vividly engages the “best interests” arguments, I am not sure that it engages the provisions of section 1 (6) to the same degree, if at all.”
Having reviewed all of the material presented to the court, Mr Justice Cobb reached the conclusion that it was in UF’s best interests that she remain at the care home. The case for UF to return to her home was mounted very substantially on UF’s expressed wishes to “go home” but the court was not satisfied that she had a sufficient or consistent understanding of what was meant by going “home”. The evidence presented demonstrated that UF’s view had been neither consistent, nor clear. In addition, the independent social worker (“ISW”) had stated that his opinion that UF should return home was qualified by the essential requirement for a “robust care package”. The assessment by the ISW of the care package was predicated on the basis that UF showed no sign of aggression or hallucination, but reports from the care home and by UF’s family made it clear that she did show aggression and there were signs of hallucination, so the care package in those circumstances was more problematic.
Mr Justice Cobb was satisfied that UF was now settled in the care home and that she would be safer there than she would be at home. In his judgement, it would be enormously disruptive to move her back home, only for a short time, followed by moving to another care home:
“Mr. Watkins is right to describe a plan to move UF to Ridgeways as ‘risk-taking’; I agree that it would be. Where he and I differ is that I do not regard this as ‘positive risk-taking’.”
Her home would have to be sold. The LPA finance holder was not in fact challenged by the sister who had sought to move her mother back home.
The standard authorisation was extended to allow for the normal process of renewing standard authorisation to take place. The Court received extensive and helpful submissions from counsel on the issue of deprivation of liberty in the home. In the final analysis, the parties agreed that as a matter of fact UF would have been deprived of her liberty had her moving back home been authorised as in her best interests. The judge would have been likely to agree. This would have then led to consideration of a court authorised order, as DoLS would not have been applicable.
It is not possible to tell from the judgment, for sure, who was contracting for the care in the care home.
The case report says that there was a deferred payment arrangement under which the council paid the majority of the fee for the care home, but also that it was actually paid for largely by UF at £2200 a month: I think that means that she was nearly a full cost payer, but that the contracting party was the council, and that there was no charge in place, but just mounting debt, which would be secured by the HASSASSA 1983 unilateral charge.
In the future, if she had been moved home, the council said that she would have been transferred to the mental health team and they would have reviewed after a few weeks, but closed the case if it was going well. It was proposed that that cost of care could be met under what was again called a deferred payment agreement set up by the LPA finance holder, using her capital: and the judge said that this would be in accordance with the type of arrangement authorised by DJ Eldergill in Westminster City Council v Sykes  EWHC B9 (COP).
That is of course still ambiguous as to whether they would have bought the care package contractually, and charged under HASSASSA, or let the LPA holder do it directly and privately.
This is critically important to management nationwide, because the cost of a care package at home would have been a lot more, but it remains unclear as to who would have been arranging it; and if the council, whether it would then make any attempt to cap its offer, either arbitrarily, by reference to the cost of the care home, or rationally, and legitimately based on the family/attorney taking the private initiative to reduce the unmet need from the high gross cost down to something more reflective of the cost of the care home.
In the Sykes case, which could form the basis of an entire module in social care education, in the site editor’s view, the judge did not have to explore the limits of cost capping discretion, if any exists at all: the council’s staff had said yes to trialling the lady back in her own home, but senior management had declined to find it cost effective. At this trial in the CoP, no council could afford the legal risk of setting a precedent that limited it.
“Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed.
It is for RS, the local authority and HH to discuss and agree the content of the care package that is necessary, having regard to the need within available resources to maximise the chances of the package being accepted by MS.
From the court’s point of view, I am very conscious that RS’s own age and health, and the distance he lives from Ms S’s flat, mean that it is not physically possible for him to support Ms S at past levels of intensity for more than a further short period of time. He has been heroic in the care he has provided and now needs more, not less, rest. All need to consider what support he may be entitled to in his own right as a carer in the short-term.
It would be helpful to know whether MS is more likely to accept support at home from NHS staff and what is available (if anything) in terms of NHS input and funding (GP support, district nursing, equipment and occupational therapy, community matron support, assistive technology).”