Archive for Care and Health Law Cases

Christopher Mitchell v London Borough of Islington [2020] EWHC 1478 (ending of Housing Act Interim Duties)

10 June 2020

Overview

C sought judicial review after Islington Borough Council (D) terminated his rights to temporary accommodation under S188(1) of the Housing Act 1996.

By the time the case came to court he was living with his brother and had been offered assistance with obtaining private rented accommodation.

Therefore the main LEGAL question was how and when a local authority’s interim duty under section 188 of the 1996 Act can come to an end, in light of amendments made to section 188 by the Homelessness Reduction Act 2017 (“the 2017 Act”).

Held:

“In the scenario where subsection (1ZA)(b) is applicable, an applicant for homelessness assistance will be benefitting both from the interim duty to accommodate under section 188(1) and the parallel duty to assist with securing accommodation under section 189B(2).

Section 188(1ZA) enables a local housing authority to bring the interim duty to accommodate to an end where it has concluded its inquiries under section 184 and has decided that the applicant does not have a priority need. It is permitted to do this even though the separate and different initial duty under section 189B(2) is continuing. This is what is specifically contemplated and provided for in section 188 (1ZA)(b).

In these circumstances, it is an understandable requirement that in order to bring that interim duty under section 188(1) to an end, the applicant must receive notice of a decision from the local authority that makes reference to the continuing initial duty under section 189B(2).

What is the decision that has to be notified? It is a decision by the authority to the effect that when the [separate ‘securing’] duty they owe to the applicant section 189B(2) comes to an end, they will not owe the applicant any duty under section 190 or 193 of the 1996 Act.

The statute requires, and the applicant is entitled to, notification that upon the continuing section 189B(2) duty coming to an end, the local authority will not be under an obligation to provide accommodation to the applicant under section 190 or 193.

Notification in that form provides some safeguard against an applicant wrongly assuming that the section 189B(2) duty has also come to an end when that is not the case.”

In a similar case settled by consent (Harris, settled in March but mentioned in the above Mitchell case) commented on here, https://nearlylegal.co.uk/2019/04/ending-duties-after-the-hra/ involving the same council, Giles Peaker of Nearly Legal fame, working at the Housing and Public Law team at Anthony Gold Solicitors in South London, has analysed the situation thus:

“I have been a bit surprised that cases about the performance of the Homelessness Reduction Act duties have not come up before. It may well be that they have been settled, as this one was. I very much doubt that this will be the last. This one, though, makes the clear argument (and I think rightly) that the HRA duties are both sequential and cumulative. So, for example, a council might be able to discharge a s.189B duty and issue a negative s.184 decision at the same time, but it can’t lawfully do so unless it has carried out the s.189A duty, including assessment and provision of the personal housing plan, beforehand. It is also surely right that where the Housing Act 1996 as amended requires written notice of a) duties owed and b) termination of duties, those cannot simply be skipped or assumed to be wrapped into an ‘overall’ decision on duties under s.184.

In the Harris case, it was clear that the s.189B(2) [securing] had not come to an end. The mere effluxion of time – the 56 days – did not end the duty. The authority must still decide to end the duty and must give notice (s.189B(5) and (6)), including notifying the applicant of their right to seek a review. This had not been done, so the duty was not ended.”

Case Facts

C was 30 years old, with no fixed address and suffered from numerous medical conditions which affected the way he interacted with people on a day to day basis.

In June 2018 C was assessed as being eligible for homelessness assistance. D provided C with temporary accommodation from August 2018 to October 2018, until it was decided that he did not have a ‘priority need’ for housing assistance under s189(1)(c) of the 1996 Act.

D told C of its decision in letter form.

A social worker appealed this decision on the basis of his medical conditions, and D agreed to carry out a review. However, it refused to provide accommodation pending the outcome of that review.

Numerous letters were sent to D, stating that the failure to provide accommodation was in conflict with its ongoing duty under s188(1). D could only discharge its duties in ways explicitly specified  under 188(1ZA) 2017 Act. C claimed that they had failed to do so, and therefore still owed him the duty to provide interim accommodation under s188(1) because it was still ongoing until lawfully brought to an end.

The Law

Section 188 of the 1996 Act in its amended form provides as follows:

“188.— Interim duty to accommodate, in case of apparent priority need.

(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they must secure that accommodation is available for the applicant’s occupation.

(1ZA) In a case in which the local housing authority conclude their inquiries under section 184 and decide that the applicant does not have a priority need—

(a) where the authority decide that they do not owe the applicant a duty under section 189B(2), the duty under subsection (1) comes to an end when the authority notify the applicant of that decision, or

(b) otherwise, the duty under subsection (1) comes to an end upon the authority notifying the applicant of their decision that, upon the duty under section 189B(2) coming to an end, they do not owe the applicant any duty under section 190 or 193.

(1ZB) In any other case, the duty under subsection (1) comes to an end upon the later of—

(a) the duty owed to the applicant under section 189B(2) coming to an end or the authority notifying the applicant that they have decided that they do not owe the applicant a duty under that section, and

(b) the authority notifying the applicant of their decision as to what other duty (if any) they owe to the applicant under the following provisions of this Part upon the duty under section 189B(2) coming to an end

(1A) But if the local housing authority have reason to believe that the duty under section 193(2) may apply in relation to an applicant in the circumstances referred to in section 195A(1), they shall secure that accommodation is available for the applicant’s occupation until the later of paragraph (a) or (b) of subsection (1ZB)] regardless of whether the applicant has a priority need.

(2) The duty under this section arises irrespective of any possibility of the referral of the applicant’s case to another local housing authority (see sections 198 to 200).

(2A) For the purposes of this section, where the applicant requests a review under section 202(1)(h) of the authority’s decision as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part 6 offer (within the meaning of section 193A), the authority’s duty to the applicant under section 189B(2) is not to be taken to have come to an end under section 193A(2) until the decision on the review has been notified to the applicant.

(3) Otherwise, the duty under this section comes to an end in accordance with subsections (1ZA) to (1A), regardless of any review requested by the applicant under section 202. But the authority may secure that accommodation is available for the applicant’s occupation pending a decision on review.”

In this case, there was no dispute that D’s interim duty was triggered – when the application was made, D had reason to believe that C could meet the criteria under S188 (1) (applicant may be homeless, eligible for assistance and have a priority need).

The issue was one of law: when and how that interim duty came to an end.

C claimed it was in accordance with subsections (1ZA) to (1A) (giving notice in an appropriate manner).

D, the council, argued that it was when D decided C was not in priority need, as that would mean falling short of criteria in s188(1).

It was argued by C that if the 1996 Act had remained un-amended, then D notifying C of its decision in letter form would have been sufficient to end the duty. However the 2017 amendments meant that a letter to that effect would not now be enough.

Whereas D argued that the interim duty only lasted until a decision was reached under section 184(1) of the 1996 Act and that it was sufficient to notify C under section 184 of the 1988 Act that they had decided C was not in priority need, to bring the interim duty to an end.

Section 189A(9) 1996 Act provides that until the authority consider that they owe the applicant no duty, it must keep their assessment of the applicant’s case under review.  Section 189B was also inserted by the 2017 Act, which has its own mechanism for discharging D’s duty.

Where the local housing authority has concluded that the applicant does not have a priority need, the duty can be brought to end if any of the circumstances set out in section 189B(7) apply, and the authority decide to give notice to the applicant bringing the duty to an end, 189B(5).

The Claimant’s solicitors also placed reliance upon paragraph 15.8 of the Secretary of State’s Code of Guidance and the outcome of a claim in R(Harris) v London Borough of Islington CO/1282/2019. That Guidance makes it clear that it is not merely a decision that the person is not in priority need that is enough; it is a notification of a decision that no further duty under the relief duty is owed, either.

s189B – the initial duty owed to all eligible persons who are homeless

(1) This section applies where the local housing authority are satisfied that an applicant is—

(a) homeless, and

(b) eligible for assistance.

(2) Unless the authority refer the application to another local housing authority in England (see section 198A(1)), the authority must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least—

(a) 6 months, or

(b) such longer period not exceeding 12 months as may be prescribed.

(3) In deciding what steps they are to take, the authority must have regard to their assessment of the applicant’s case under section 189A.

(4) Where the authority—

(a) are satisfied that the applicant has a priority need, and

(b) are not satisfied that the applicant became homeless intentionally,

the duty under subsection (2) comes to an end at the end of the period of 56 days beginning with the day the authority are first satisfied as mentioned in subsection (1).

(5) If any of the circumstances mentioned in subsection (7) apply, the authority may give notice to the applicant bringing the duty under subsection (2) to an end.

 (6) The notice must—

(a) specify which of the circumstances apply, and

(b) inform the applicant that the applicant has a right to request a review of the authority’s decision to bring the duty under subsection (2) to an end and of the time within which such a request must be made.

(7)The circumstances are that the authority are satisfied that—

(a) the applicant has—

(i) suitable accommodation available for occupation, and

(ii) a reasonable prospect of having suitable accommodation available for occupation for at least 6 months, or such longer period not exceeding 12 months as may be prescribed, from the date of the notice,

(b) the authority have complied with the duty under subsection (2) and the period of 56 days beginning with the day that the authority are first satisfied as mentioned in subsection (1) has ended (whether or not the applicant has secured accommodation),

(c) the applicant has refused an offer of suitable accommodation and, on the date of refusal, there was a reasonable prospect that suitable accommodation would be available for occupation by the applicant for at least 6 months or such longer period not exceeding 12 months as may be prescribed,

(d) the applicant has become homeless intentionally from any accommodation that has been made available to the applicant as a result of the authority’s exercise of their functions under subsection (2),

(e) the applicant is no longer eligible for assistance, or

(f) the applicant has withdrawn the application mentioned in section 183(1).

Subsection (1ZA) applies where a local housing authority has concluded their inquiries under section 184 and decided that an applicant does not have a priority need. That is the situation that applies here.

Subsection (1ZA) applies where a local housing authority has concluded their inquiries under section 184 and decided that an applicant does not have a priority need. That is the situation that applies here.  Subsection (1ZA) is predicated on a decision having been made under section 184, but that is not identified as sufficient of itself to bring the duty to an end. It is only a threshold criterion for what then follows.

Subsection 1ZA provided two ways for D to discharge their duty;

 (1ZA)(a)  applies where the local housing authority decide that they do not owe the applicant a duty under section 189B(2). If an authority reaches that decision, the interim duty under section 188(1) comes to an end when the authority “notify the applicant of that decision”. What needs to be notified to the applicant to bring the interim duty to an end under subsection (1ZA)(a) is the decision that the authority have decided that they do not owe the applicant a duty under section 189B(2).

In this case, the interim duty did not come to an end under this provision, therefore considering how ‘notice’ was given, was purely academic.

The second way of bringing the duty to an end for a person that the authority decides is not in priority need is set out in subsection (1ZA)(b).

If a local housing authority has determined that a person is not in priority need – which must be the case for section 188(1ZA) to apply – the authority will be aware that they will not owe that person a duty under section 190 or section 193 when the initial duty under section 189B(2) comes to an end.

In this situation, section 188(1ZA)(b) enables a local housing authority to bring the interim accommodation duty under section 188(1) to end.

This can be done even where the duty under section 189B(2) to help the applicant to secure accommodation continues. But in order to bring the interim duty under section 188(1) to an end, the local housing authority is required to notify the applicant that it has decided that when its (different) duty under section 189B(2) comes to an end, it will not owe that applicant a duty under section 190 or section 193 of the 1996 Act.

Where section 188(2A) does not apply (which it does not in this case), the word “Otherwise” at the beginning of section 188(3) means that the cessation of the interim duty is governed by section 188(3).

Section 188(3) identifies that the duty under section 188 comes to an end in accordance with subsections (1ZA) to (1A), regardless of any review requested by the applicant under section 202. This means it is necessary to turn to those subsections to understand when and how the duty is brought to an end, and section 188(1ZA) in particular in this case.

The second way of bringing the duty to an end for a person that the authority decides is not in priority need is set out in subsection (1ZA)(b). It applies in any other case not covered by (1ZA)(a). That is clear from the use of the word “otherwise” with which subsection (1ZA)(b) begins. The subsection continues by providing for the duty to come to an end “upon the authority notifying the applicant of their decision that, upon the duty under section 189B(2) coming to an end, they do not owe the applicant any duty under section 190 or 193.”

The language here is less simple than in subsection (1ZA)(a). The duty is brought to an end if the authority notify the applicant of the “decision” identified in subsection (1ZA)(b).

“On analysis, that requirement reflects the general logic of the statutory scheme as amended. The duties under section 190 or 193 of the 1996 Act are duties that are only owed by a local housing authority after its duties under section 189B(2) come to an end. Those are also duties which only apply to a person “in priority need”.

If a local housing authority has determined that a person is not in priority need – which must be the case for section 188(1ZA) to apply – the authority will know that they will not owe that person a duty under section 190 or section 193 when the initial duty under section 189B(2) comes to an end. In this situation, section 188(1ZA)(b) also enables a local housing authority to bring the interim accommodation duty under section 188(1) to end. This can be done even where the duty under section 189B(2) to help the applicant to secure accommodation continues. But in order to bring the interim duty under section 188(1) to an end, the local housing authority is required to notify the applicant that it has decided that when its (different) duty under section 189B(2) comes to an end, it will not owe that applicant a duty under section 190 or section 193 of the 1996 Act.

It was decided that the letter from D did not provide the type of notification set out in subsection (1ZA)(b). It did not comply with the notification requirement set out in section 188(1ZA)(b)  – it failed to inform the applicant of a decision that when the authority’s section 189B(2) duty comes to end, the local authority would not owe him a duty to provide him with accommodation under section 190 or section 193 of the 1996 Act.

“Section 188(3) in this original form therefore provided for the cessation of the interim duty on notification of the authority’s “decision” to the applicant. Although not explicit, I assume that this was a reference to the authority’s decision under section 184(3) of the 1988 Act. On this basis, a letter of the type that the Defendant sent to the Claimant on 5 October 2019 would have brought the Defendant’s interim duty to the Claimant if section 188(3) had remained in its original form. The claimant’s barrister positively relied upon this to emphasise the change now made to the statutory scheme by the 2017 Act. His contention was that the amendments to section 188 by the 2017 mean that a letter in that form notifying an application of a decision under section 184(3) of the 1996 Act is no longer sufficient.”

The letter therefore may have been sufficient to have brought the interim duty to an end under section 188(3) when it was first enacted; however it had since been amended. Therefore the letter was not sufficient notice to bring the duty to an end under section 188(3) in that amended form. That requires notification by the local housing authority of the specific decision prescribed in subsection (1ZA)(b).

The Court did not consider it necessary or appropriate to grant relief beyond a declaration reflecting the fact that the letter did not bring the D’s duty to an end.

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R v Lawrence [2020] EWCA Crim 971

Hearing date: 30 April 2020

What the case decides

The fully capacitated complainant here agreed to sexual intercourse with the appellant without imposing any physical restrictions.

The man told her he had had a vasectomy. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom. She got pregnant and accused him of rape.

In so doing she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse.

However, the Court of Appeal decided that the deception was one which related not to the physical performance of the sexual act, but to risks or consequences associated with it. The question of consent could not be affected by whether pregnancy followed or not; and neither could it be affected by the gender of the person who was guilty of deceit.

It is noteworthy that if the individual had been cognitively impaired, her ability to understand the consequences of sex include pregnancy for a woman or not understand the relevance of the assurance of a vasectomy would probably have been sufficient to sustain the prosecution on the wider ground that informed consent was lacking (if one considers the CoP caselaw on the different meaning of consent in relation to engaging in sex at all).  

What Happened

The appellant (Mr A) told his intended sexual partner (Ms B) that he had had a vasectomy. On that basis, she agreed to have unprotected sexual intercourse with him, where otherwise she would have insisted on using a condom. Ms B made it clear she did not want to become pregnant, and Mr A repeatedly assured her he had ‘had the snip’.

The next morning, Mr A texted her stating ‘I have a confession. I’m still fertile. Sorry.”

Ms B later discovered that she was pregnant and underwent a termination.

The prosecution argued that Ms B’s consent was negated by Mr A’s deception. Mr A was convicted of rape, and appealed to the Court of Appeal to overturn the conviction.

The Law

Section 1(1) of the Sexual Offences Act 2003 (“the 2003 Act”) provides:

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.”

Section 74 of the 2003 Act provides the basic definition of consent:

“For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

Section 75 is concerned with a series of evidential presumptions (not in issue in this appeal) and 76 sets out “conclusive presumptions about consent”:

(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed

(a) that the complainant did not consent to the relevant act, and

(b) that the defendant did not believe that the complainant consented to the relevant act.

(2) The circumstances are that—

(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.”

The trial Judge had directed the jury on the legal elements of the offence of rape. In relation to the issue of consent he summarised the effect of section 74:

“A complainant consents to having sexual intercourse if she agrees by choice to the penetration and has the freedom and capacity to do so.”

“As consent is based upon a complainant’s agreement by choice to have sexual intercourse with another person, a woman may choose to have sexual intercourse with a man only if he wears a condom and, if he does not do so, it would be open to you to determine that the complainant had not consented to the penetration… Likewise, where a woman agrees to have sexual intercourse with a man in the belief that he has had a vasectomy, if the man has deceived the woman into believing that he has had a vasectomy when he has not done so it would again be open to you to determine that, if she would not otherwise have agreed to have sexual intercourse with the man she did not consent to the penetration.”

The trial Judge had directed the jury members to ask themselves the following questions:

i) Whether they were sure that Mr A falsely represented to Ms B that he had had a vasectomy. If yes, then:

ii) Whether they were sure that she did not consent to Mr A penetrating her vagina with his penis because she relied upon that false representation and would not otherwise have agreed to be penetrated by him. If yes:

iii) Whether they were sure that Mr A did not reasonably believe that she consented to him penetrating her vagina with his penis.

On appeal, Mr A submitted:

i) Not all deceptions leading to an individual consenting to sexual intercourse are sufficient to negate consent.

ii) Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and R (F) v. DPP [2014] QB 581[2013] EWHC 945 (Admin) were distinguishable. In Assange, the prosecution case was that the complainant agreed to sexual intercourse only if Mr Assange wore a condom, but either he did not do so, or removed it during intercourse. He was convicted. In F, the prosecution case was that the complainant consented to intercourse only on the basis that the defendant would withdraw before ejaculation, but he never intended to comply with that condition and did not do so.

It was submitted that deceit as to fertility would not be sufficient to negate consent.

In the two cases the consent was given on the basis that ejaculate would be prevented from entering the complainants’ vaginas, whereas in Mr B’s case this was not what was sought to be avoided. Preventing ejaculate from entering the vagina related to an integral part of the sexual act and was therefore closely connected with it, such that a deceit as to its performance was sufficient to negate consent.

In contrast, for Mr B, the deceit went only to the consequences of the sexual act – that is the risk of pregnancy, and was insufficiently connected with the sexual act to negate consent, it was submitted.

The prosecution also relied on R v B [2007] 1 WLR 1567[2006] EWCA Crim 2945 where the appellant had not disclosed that he was HIV+, and consent was not vitiated in that case.

iii) there was no evidence upon which a jury could be sure that the offence of rape had taken place and the judge should therefore have acceded to the defence submission that there was no case to answer and withdrawn these counts from the jury’s consideration; and

iv) the judge misdirected the jury about what they needed to be sure about before they could convict the appellant.

The prosecution submitted:

i) That there was a material distinction between this case and R v B which concerned a failure to disclose a risk of disease rather than a positive deception concerning fertility.

ii) There was no material difference between the position of the complainants in Assange and R (F) v. DPP, both of whom sought to avoid the risks of pregnancy, and this case, where consent to sexual intercourse was conditional upon his infertility and thus no risk of pregnancy.

What was found

It makes no difference to the issue of consent whether there was an express deception or, a failure to disclose (as in the case of R v. B). The issue was whether the appellant’s lie was sufficiently closely connected to the nature or purpose of the sexual act, rather than the broad circumstances surrounding it. In this case, it was not.

The Court discussed the narrow circumstances where the law recognises that a deception of this nature extinguishes consent so that it has the potential to be rape under S76(2):

  1. Where there is a deception as to the identity (including sex) of the other person.

R v. Clarence [1882] 22 QBD 23 – a man who did not inform his wife that he had venereal disease did not commit an offence under the Offences Against the Person Act 1861;

Assange concluded that section 76 of the 2003 Act had no application because there was no deception as to identity or the nature or purpose of the act. The question whether the deliberate failure to wear a condom in these circumstances meant there was no consent was to be judged by section 74;

 R (F) v. DPP  the evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way. If before penetration began the [man] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the [woman] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuing of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.”

  1. Where there is a deception as to whether ejaculate will be deposited inside the other person;

(a) R v. Clarence [1882] 22 QBD 23 – a man who did not inform his wife that he had venereal disease did not commit an offence under the Offences Against the Person Act 1861;

(b) Assange concluded that section 76 of the 2003 Act had no application because there was no deception as to identity or the nature or purpose of the act. The question whether the deliberate failure to wear a condom in these circumstances meant there was no consent was to be judged by section 74;

(c) R (F) v. DPP – the evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way. If before penetration began the [man] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the [woman] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuing of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.”

The Court stated that a lie about fertility is different from a lie about whether a condom is being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so, and different from engaging in sexual activity having misrepresented one’s gender.

The Court found that the lie about fertility was not capable of negating consent and quashed the man’s convictions relating to the fertility lie. It was the consequences of the sexual act that was agreed to that had changed (i.e. the risk of pregnancy), not the act itself.

https://www.bailii.org/ew/cases/EWCA/Crim/2020/971.html

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Dorset Council v A (Residential Placement: Lack of Resources) [2019] EWFC 62 (10 October 2019)

In this case, his honour Judge Dancey expressed his concern about the increasing number of children and young people in need of help and support in Dorset, England.

A care order was made on August 12th 2019 and a final deprivation of liberty (DOL) order on September 30th 2019 within the care proceedings (through use of the inherent jurisdiction of the High Court).

The case centred around a young girl, A, aged 15 and the lack of suitable resources made available for her by the local authority.

A lived at home with her parents who had been involved with Dorset County Council for a couple of years already. They used drugs recreationally and had an abusive relationship. Social workers claimed that she was beyond the control of her parents and at risk of sexual exploitation.

The police intervened in August 2018 and with agreement from A’s mother, used their powers of protection to withdraw A from her family home and find her a foster family to live with. However, A did not readily accept the new rules imposed on her by the foster homes and often went missing. She was moved to a residential placement in Shropshire where she was admitted to hospital several times for self-harming.

The local authority issued care proceedings in January 2019 on the basis that A was beyond parental control. A’s parents did not oppose the court order.

A’s placement in Shropshire lasted until the end of January when she was moved to a different unit in Somerset. A had wished to return home but her father was in prison and neither parent was judged to be capable of ensuring her well-being.

A court-appointed psychologist was commissioned to write a report on A’s behaviour in order to identify ways in which she could be helped. A refused to meet with the psychologist, Dr Jefferis, but using the information available he felt that A’s parents would be unable to meet her needs for safety and boundaries.

Dr Jefferis thought that A’s needs could only be met in a residential placement, and she was moved to one in the New Forest in April in a 90-day crisis placement. It was planned that she would move again in July to a permanent setting.

To this date, no permanent placement has been found for A. Between July and August, she was moved to and fro, between a number of placements, three of which were unregulated.

At the end of August, A attended a hearing to approve DOL at a new permanent, regulated placement in Plymouth at a facility run by Cambian. An assessment was planned and then cancelled without notice, rescheduled and then cancelled again as another child had secured the placement.

The Judge said at this point that A was settled in her current placement in Wimborne but that she was disappointed not to be moving to a more permanent setting. He also wished to make it clear that he believed that Dorset Council was not unwilling to find or fund a placement for A and that social workers were working tirelessly to find one.

In late September, the senior management at the local authority decided to move A temporarily to a caravan in Bridport. The reasons for this were dubious and extremely poorly communicated to A. She was told one day that an out of hours social worker was to visit her late the same night and for some time, this left her believing that her father may have died.

When she was visited, she was reassured that her father was alive. However, she and her carers said that they were told that a 9 year old boy, B, was potentially coming out of hospital needing 3:1 support. She was asked if she would move, with her carers, to a holiday home for 3 nights. A felt that she had no choice but to agree.

It later transpired that this young boy was in fact aged 17 and had had to be moved into A’s room after damaging his own unregulated placement. On September 16th, the Wimborne placement told A that she couldn’t come back yet as B was still there. She was moved to another caravan site but described herself as feeling homeless.

A was supposed to return to the Wimborne placement the next day but B had damaged the property there as well and it needed repairs. She refused to go back to the caravan in Bridport and requested she stay with her mother. However, they had an argument and A contacted staff from Quayside (the organisation that staffed the placement at Wimborne) who collected her.

The Judge reviewed A’s DOL in court on September 20th and continued it, feeling as though he had convinced A of the logic in his decision. However, later that day A was moved to an unregulated placement in Wareham.

The Director of Children’s Services for Dorset was directed by the Judge to write an explanation of the events to the court. It would seem as though it was the Director herself who had decided to ask A to move out to accommodate B, and it was disputed that any misrepresentation had been made about the other boy’s age or situation.

Then, on September 24th following a phone call with her mother, A became aggravated and told the staff in Wareham that she had taken an overdose of Paracetamol. This was inaccurate but resulted in the manager asking A and her carers to leave and so she was moved again to a caravan park near Weymouth.

A did not attend the final DOL order hearing on September 30th and it was continued by the Judge. At the time of the hearing promises had been made both to the judge and to A that she could return to her placement in Wimborne on October 2nd. The team manager told the judge that they were optimistic that A will have been found a permanent placement with Cambian shortly.

The judge said this:

“I tell this story simply to highlight the resource issues that local authorities face looking after young vulnerable people at risk of harm.  For A, the consequences have been:

a)             no residential placement or any sense of permanence or stability;

b)             by my count, excluding the initial foster placements, 10 placements over the course of a year, all bar two of them unregulated, and lasting from a few months to a few days;

c)             still no formal education;

d)            no real chance to address the things Dr Jefferis was talking about in his report;

e)             a situation within which A stayed with her mother in an unplanned way and there was an argument between them which will not have helped their relationship;

f)              break down in trust between A and the professionals (however hard they might be working to support her).

Full transcript available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2019/62.html

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A NHS Foundation Trust v MC [2020] EWCOP 33

What Happened

MC was an 18 year old with undisclosed learning and language difficulties. The case came to the Court of Protection because an NHS trust sought consent to harvest her peripheral blood stem cells, so they could be donated to her mother who had chronic leukaemia.

This was the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity had come before the CoP, and the first time the Human Tissue Authority (“HTA”) had been involved in a case of this nature. 

It was agreed by all parties that MC lacked capacity to give informed consent for the collection of stem cells and their use. Therefore, Mr Justice Cohenhad to consider whether it was in MC’s best interests for her stem cells to be harvested for the benefit of her mother; and whether the court should consent to the procedure.

Mr Justice Cohen concluded that it was “overwhelmingly in MC’s best interests to participate in the proposed programme and donate her stem cells for the benefit of her mother. It is in MC’s best interests as much her mother’s.”

In reaching this conclusion, he had to consider the risks and the benefits of the procedure.

Mr Justice Cohen highlighted that the procedure would not be risk free. It would require hospital visits, and the course of action could have possible side effects for example flu-like symptoms, or risk of infection.

He also had to consider that the procedure had no physical benefit for MC herself. In his consideration he referenced Connell J in Re Y (Mental Patient: bone marrow donation) [1997] Fam 110:

“The taking of blood tests and the harvesting of bone marrow from the defendant, who is incapable of giving informed consent, would amount to assaults upon the defendant and would therefore be illegal unless shown to be in the best interests of the defendant and therefore lawful. The test to be applied in a case such as this is to ask whether the evidence shows that it is in the best interests of the defendant for such procedures to take place. The fact that such a process would obviously benefit the plaintiff is not relevant unless, as a result of the defendant helping the plaintiff in that way, the best interests of the defendant are served.”

He then also referenced Morgan J in Re G (TJ) [2010] EWHC 3005 (COP):

“The word “interest” in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor.”

However, Mr Justice Cohen went on to state that it was very clear that MC had a very loving relationship with her parents, with whom she lived, and without a stem cell transplant, MC’s mother was not expected to live for more than a year. There were clear benefits, emotional, social and psychological, to MC, of her mother’s life being extended.

MC was the only family member who was a match, and therefore able to provide stem cells.

It was highlighted that although MC could not understand the details, she understood that her mother was not well and that she may have ability to extend her mother’s life and perhaps enable her to recover. It was shown that MC wanted to do that – it had been her repeated wish expressed to the doctors and to the Official Solicitor that she wanted to give what help she could.

These benefits outweighed the risks, to enable CoP to consent to MC donating her stem cells to aid her mother.

Wider Context

Although in this case, it was in MC’s best interests to participate in the procedure, Mr Justice Cohen took time to consider the case in a wider context.

He stated that there were about 65 individuals each year under the age of 18 for whom the HTA gives approval for this sort of procedure. It was not known how many of those had difficulties with capacity, like MC. MC’s case came before the court because she was an adult, where there was no Lasting Power of Attorney or a Court Appointed Deputy who could give consent.

He stated that;

“For others under the age of 18 there is, or was felt to be, something of a vacuum. On analysis that vacuum has been partially but not completely filled. The treating Trust holds no duty of care to the donor because its obligations are to its patient, the donee who will be the recipient of the stem cells. The HTA will check only to see if there is consent and no monetary payment (which is forbidden) or other pressure or coercion applied.

Nowhere is there at the centre of what is being considered either by the treating Trust or the Human Tissue Authority, the best interests of the donor…

I go no further than to say that there really should be a considered risk and benefit analysis by the accredited assessor. I am not criticising the accredited assessor in any way. This is the first application to be considered since the Mental Capacity Act 2005 came into operation. However, it could only be beneficial if a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 was performed in each case where the HTA is faced with an issue of capacity of the donee.”

The full report can be found here

https://www.bailii.org/ew/cases/EWCOP/2020/33.html

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OXFORD UNIVERSITY HOSPITALS NHS FOUNDATION TRUST v Z [2020] EWCOP 20

Date: 03/04/2020

What Happened

Z was a 22 year old pregnant woman with a rare chromosomal abnormality syndrome. As a consequence, she suffered from cognitive impairment and a bicornate uterus.

This was her fifth pregnancy. Three of her children had been taken into care, and one sadly died at 6 days old. Z had had complications with all her previous pregnancies, and this pregnancy was considered high risk. As such, she was booked in for a planned C-section.

She had capacity to make general decisions about her ante-natal and mode of delivery.

Z’s medical team (Oxfordshire University Hospital NHS Foundation Trust) made an application to the Court of Protection (CoP). The Trust considered that in light of Z’s obstetric history, she lacked capacity to make decisions concerning contraception. Therefore it would be in Z’s best interests to fit an intrauterine contraceptive device (IUD) at the same time of her C-section to prevent future pregnancies and ‘enable family spacing’.

Z was against having an IUD fitted, and wanted to have the ‘long lasting contraceptive injection’ instead.

Capacity

The Judge set out the legal principles when deciding if a person lacks capacity or not:

  • A person must be assumed to have capacity unless it is established that she lacks capacity: s.1(2) MCA.
  • The determination of capacity under Part 1 of the MCA is always “decision specific”
  • Any lack of capacity must result from an impairment of, or a disturbance in, the functioning of the person’s mind or brain: s.2(1)
  • It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary
  • A person is to be treated as unable to make the decision on the matter in issue for herself if she is unable to
    • understand the information relevant to the decision;
    • retain that information;
    • use or weigh that information as part of the process of making the decision; or
    • communicate that decision: s.3(1);
  • The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as able to make the decision: s.3(3);
  • The “information relevant to the decision” includes information about the reasonably foreseeable consequences of deciding one way or another; s.3(4)(a);
  • The Court should guard against over-complicating what is the “information relevant to the decision”
    • Baker J in CC v KK & STCC: “it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors.”
    • However, the more serious the decision, the greater the capacity required (In re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113B;
  • A person is not to be treated as unable to make a decision merely because she makes an unwise decision: s.1(4);

The test for capacity to decide on contraceptive treatment was set out by Bodey J in In re A (Capacity: refusal of contraception) [2011] Fam 61 as follows:

“… the test for capacity should be so applied as to ascertain the woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment, including:

  1. the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);
  2. the types available and how each is used;
  3. the advantages and disadvantages of each type;
  4. The possible side effects of each and how they can be dealt with;
  5. how easily each type can be changed; and
  6. the generally accepted effectiveness of each.”

Did Z have capacity to make decisions about contraception?

All reports agreed that Z lacked the capacity to make the decision about contraception and the insertion of an IUD.

Z had a pattern of yearly pregnancies, showing an inability to control and understand her fertility.

There was extensive medical evidence to show that any future pregnancy would pose a high risk to Z’s health. Each pregnancy was getting more and more complicated; she had gestational diabetes (resulting in large babies, making delivery more dangerous), and had already had two c-sections (which increase the risk of uterine rupture, haemorrhage, the need for hysterectomy, the possibility of the mother or baby dying).

The medical professional stated that “any future pregnancy would require a fully compliant, understanding mother so as to maximise the mother’s safety and that of her baby.” He concluded that Z was “an extremely high risk individual where any future pregnancy would carry with it a significant risk to her and her baby’s health”.

The ability to “understand and weigh up the nature and degree of the physical risks to her consequent on another pregnancy was fundamental to Z’s ability to make a decision about contraception”. Capacity assessments showed that Z did not have sufficient understanding of her own health status to apply any grasp of risks and benefits to her own individual circumstances.

Z was unable to explain why she wanted the injection rather than the IUD, stating ‘it’s my body, I’m having the injection’. She lacked any understanding that her compliance could be an issue, as the Doctor pointed out that she was not complying with her other medication for diabetes, anaemia and nutritional deficiencies.

The Doctor concluded that “In my opinion, [Z] has an inability to understand all the relevant information, specifically the risks to her health if she were to get pregnant again. [Z] did not appear to understand what an Intrauterine System (IUD) was or how it would be inserted, despite this having been explained to her at great length and with assisting diagrams by [Dr A]. I am satisfied that clinicians involved in [Z’s] care have exerted considerable time and effort in supporting [Z[ to understand this information, and am confident that nothing further could be done within the timescale available to enhance [Z’s] understanding”.

Therefore the judge decided that it was clear Z lacked capacity to make decisions concerning the insertion of an IUD and that it was “vanishingly unlikely” that Z would attain capacity to make decisions about contraception before her planned Caesarean section (which was scheduled for less than a month later).

Best Interests s.4 MCA

It was abundantly clear that it was in Z’s best interests to have some sort of contraception in place. Without it, it was “almost certain” that Z would repeatedly become pregnant, and each pregnancy would carry cumulative health risks.

Doctors advised that “the increasing risk to [Z’s] health in subsequent pregnancies, with the risk of uterine rupture and placenta percreta, which could lead to haemorrhage, hysterectomy and her death, means that she should be advised not to get pregnant for at least two years and preferably never again. Contraception needs to be as efficient as possible and not reliant on [Z] as she has not shown compliance before. An IUD would be the best balance, it is efficient, has minimal side effects and is reversible if the situation changes.”

The Judge stated that although a contraceptive injection would be the least restrictive approach (set out in s.1(6) of the Act) and was in line with Z’s wishes, it would not be sufficient. The purpose was to prevent the serious risk that future pregnancies posed to Z’s health. Because Z had a history of poor compliance with the contraceptive injection and other medical treatments during pregnancy, the judge stated that it was in Z’s best interests to have an IUD fitted at the time she had her Caesarean.

.

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error

ACC & Others [2020] EWCOP 9

Hearing: 7th October 2019

This case involved three individuals, who each had property and affairs deputies appointed from the same law firm.

ACC is now 20 years old. At the age of 4 she was involved in a road traffic incident in which she sustained serious injury and her mother died. A claim for damages was brought on her behalf, and settled in 2012 in the sum of £3 million plus periodical payments which presently amounted to £180,000 per year. She lives in her own home, with her grandparents.

ACC had Irwin Mitchell Trust Corporation Limited (“IMTC”) appointed as her property and affairs deputy. The deputyship order states at paragraph 2(a) that “The court confers general authority on the deputy to take possession or control of the property and affairs of [ACC] and to exercise the same powers of management and investment, including letting property, as she has, as beneficial owner, subject to the terms and conditions set out in this order.” The order did not contain any express provision either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings on behalf of ACC.

In 2018 her local authority suddenly ended her care plan, resulting in an application to the Court of Protection seeking to recover the legal costs she incurred in seeking an appeal against the LA’s decision.

IMTC sought “an order authorising the Deputy to take whatever steps are necessary to ensure that [ACC] has the benefit of legal advice and assistance in relation to the Education, Health and Care Plan appeal, and that costs incurred by the Deputy in retaining solicitors to act on her behalf in that matter are to be assessed on the standard basis” and authority for such costs to be paid from ACC’s funds.

There was some lack of clarity as to who actually instructed the Public Law and Human Rights team at Irwin Mitchell LLP and with what authority; some documents suggested it was her Grandmother, and others suggested it was the deputy.

JDJ is 17 years old. He sustained brain injury due to clinical negligence at birth. He lives in his own home with his parents. In 2013 an order was made appointing a property and affairs deputy for him, which also did not contain any express provision either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings on behalf of him.

His parents found a suitable educational placement for him, and wanted to appeal the Council’s decision that his needs could be met at a different, mainstream college.

By COP1 application dated 31st January 2019 [C10] the deputy applied for:

  • “… authority for costs to be incurred by Irwin Mitchell’s Public Law & Human Rights Department on [JDJ’s] behalf to ensure he receives the correct level of legal advice and representation in relation to education and social care.
  • Urgent authority is sought in order to liaise with the Local Authority regarding funding for [JDJ’s] future college placement and to appeal against their decision to the Tribunal if necessary.
  • The last day for doing this is 10 February 2019, hence the urgency. Anticipated costs in relation to this depends upon what action is required and the experts that will need to be instructed, however we would suggest a limit of £40 000 + VAT.”

Meanwhile, and to comply with Tribunal deadlines, the Public Law and Human Rights team of Irwin Mitchell LLP was instructed to advise and then to appeal against the Local Authority’s decision.

Again, quite who gave the instructions was less clear; different paperwork suggested that the Irwin Mitchell was instructed by JDJ’s parents rather than his deputy.

HPP is 50 years old. In September 2014 he sustained severe brain injury and multiple orthopaedic injuries when his bicycle was hit by a lorry. IMTC was appointed as property and affairs deputy for HPP. Again, the order did not contain any express provision either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings on behalf of HPP.

IMTC brought forward a personal injury claim on his behalf. They appointed one of their directors as HPP’s litigation friend and applied for “the Senior Court Costs Office to carry out a detailed assessment of the costs of Charlotte Lorna-Leigh Waite, as Director of Irwin Mitchell Trust Corporation Ltd as Deputy for [HPP], in connection with her role as litigation friend in the proceedings relating to his personal injury claim…”

Applicant issues

  • The broader question which arose here, was when may a professional deputy instruct a legal firm with which it is associated, and recover the costs from P?
  • The deputies stated that their ‘general authority’ extended to tasks such as:
  1. “unexceptional non-contentious legal tasks,” even if carried out by other members of the deputy’s firm. eg completion of tax returns, drafting of leases and tenancy agreements, and drawing up of carers’ employment contracts;
  2. obtaining legal advice/incurring legal costs in relation to contentious matters but falling short of conduct of litigation. Eg actions up to sending a letter before action
  • The deputies contended that it would be “too restrictive” to require seek advice every time a deputy has to conduct ‘management’ of the property.
  • They said that where circumstances demand urgent action, a deputy should be able to issue proceedings and seek interim relief without specific prior authorisation from the Court of Protection.
  • The deputies recognised the potential conflict of interest, where the deputy will charge P for the work done by the associated firm, but said that those concerns could be addressed by requiring the deputy to obtain details from other firms of applicable rates.
  • The applicant deputies highlighted that the instruction and involvement of family members ‘imports a degree of external detachment sufficient to meet any concerns about conflict of interest’.
  • The Applicant deputies said there was no legal reason why a trust corporation could not act as a litigation friend, and no legal reason why a litigation friend cannot be authorised to charge for so acting.
  • They said that if a person has capacity to give instructions for the work in question, they will also have capacity to agree the legal costs of the work.

The Judge’s findings

General Authority, seeking advice, and conducting litigation

Judge Hilder stated that “The ‘general’ authority of a deputy does not encompass authority to conduct litigation on behalf of P.” and that such authority must be specifically granted.

“the deputy must satisfy himself that any particular act in respect of P’s property and affairs is either specifically authorised or falls within the “general” authority. Ultimately, the deputy is personally at risk as to costs if he acts outside his authority.”

“‘General’ is a term of ordinary language and should be understood as such when used in a deputyship order. Various dictionaries define ‘general’ as ‘common,’ ‘widespread’, ‘not specialised’ …The purpose of the ‘general’ authority is to enable a property and affairs deputy to do on behalf of P those myriad tasks too numerous to identify individually”

Judge Hilder outlined that ‘general authority’ may include preparing a tax return etc, as these are naturally part of managing property and affairs. However she also stated that sometimes seeking legal advice in contentious litigation may be within their ‘general authority’. She stated that ‘seeking legal advice will be obviously an “ordinary” part of discharging some functions of deputyship but not others.’

Examples of situations where a property and affairs deputy may need to form a view about potential proceedings:

a.       whether there are grounds to evict a tenant of a flat belonging to P; and

b.       whether a debt said to have been incurred by P is properly payable as being in respect of “necessary goods and services” under section 7 of the Mental Capacity Act 2005.

Both of these examples are clearly in the realm of property and affairs. Where a deputy has authority to let property belonging to P, forming a view about (a) may reasonably be considered to fall within the “ordinary” discharge of that authority. Using P’s funds to settle his debts falls within the “general management” authority, and forming a view about (b) may reasonably be considered to fall within the “ordinary” discharge of that authority.

However, not all contentious litigation is to do with property and affairs. It must be borne in mind that the “general” authority in the standard terms of the deputyship order is limited by reference to possession, control, management and investment of “property and affairs.”

As already observed, it is in my judgment important to distinguish between the contemplation of litigation in the realm of property and affairs, and the contemplation of otherlitigation. Steps towards contentious litigation of the latter type are unlikely to fall within the “ordinary” discharge of the property and affairs deputy’s authority, and so are not encompassed within the “general management” provision. 

The Judged acknowledged that there was scope to consider whether litigation was in essence a matter concerning property, or welfare. Arguably it ‘is within the authority of the property and affairs deputy “to obtain initial advice on public law decisions which will have an impact on P’s property and affairs (for example because P is being deprived of a source of funding or because P is being deprived of a service which the deputy may need to provide or supplement from P’s funds.)” 

The Court suggested that property and affairs deputies may find themselves having to consider closely the limits of their authority, in regards to public law decisions: 

a. Applications for continuing healthcare funding:

i. the assessment criteria are not financial, but the decision is. Makingan application for continuing healthcare funding for P is ancillary to the “general” authority of a property and affairs deputy to ensure that P receives all the funds he is entitled to;

ii. if the process of application reasonably requires the taking of advice, obtaining that advice is within the “general” authority of the deputy, and no specific authority is required;

iii. where an application is refused, the question of appeal arises. Procedures are not as considered in paragraph 54.3 above – this type of appeal is made by letter to the CCG (or Health Board, in Wales), to be delivered within 6 months of the date of decision;

iv. It is within the “general” authority of a property and affairs deputy to take preliminary steps (including taking advice on the merits of potential appeal) up to but not including delivery of the letter of appeal. The deputy should seek specific authority to conduct the appeal on behalf of P, and without it proceeds at risk as to costs.  

b. Education, Health and Social Care Plans:

i.  the assessment criteria are not financial, and neither is the decision. Even though there may be financial impact, the process of applying for an Education, Health and Social Care Plan is not within the “general” authority of a property and affairs deputy;

ii. Appeal lies to the First-tier Tribunal (Health, Education and Social Care Chamber), and must be made within two months of the decision, either by a parent of P or by P themselves, according to age.

iii. A property and affairs deputy should seek specific authority to take any steps in respect of challenging an Education, Health and Social Care Plan, and without it proceeds at risk as to costs.

iv. Given the short time period for lodging the appeal, any application for authority to conduct such proceedings on behalf of P should clearly indicate that expedited consideration by the Court is sought.

Urgent Matters

There will be some matters that are so urgent that authority to litigate cannot reasonably be obtained prior to taking action which will protect P.”

The deputy “should be able to obtain retrospective approval…provided the Court decides the action was in P’s best interests.”

This is so, not the least because of the need to give a cross-undertaking in damages if an application for an interim injunction is considered. A deputy ought not to be deterred from making that undertaking in a case where they appear to be acting in the best interests of the person or thought that they were at the time.

Conflict of interest

 Judge Hilder stated that ‘the proportionate and required approach to addressing conflict of interests is as follows:

a. when making an application for appointment, a prospective professional deputy considers whether… there is a realistic prospect that the deputy will wish to instruct someone else to give advice or carry out ‘ordinary’ legal tasks in order to be able to discharge the responsibilities of the appointment;

b. if such realistic prospect is identified, the prospective professional deputy further considers whether he may wish to instruct his own firm to advise or carry out the task;

c. if his own firm does provide the service for which he reasonably considers there to be a realistic prospect of need, the prospective professional deputy should then include in his COP1 application a request for specific authority to instruct his own firm to give the advice or carry out the task subject to a specified limit as to costs;

e. the Court’s approach to determining the limit of authorised expenditure of this type should follow the language of the Act in respect of attorneys’ authority to make gifts ie the authorisation must be limited so that it is not unreasonable having regard to all the circumstances and in particular the size of P’s estate. In some cases, the suggested limit of £2 000 + VAT in any given year may be considered sufficiently modest so as not to be disproportionate, sufficiently generous to be useful, and in the best interests of P to avoid the delay and expense of tendering. In other cases a different limit, or no such authorisation at all, may be more appropriate;

f. where seeking advice/ordinary legal tasks is within a deputy’s authority but no specific authority to instruct his own firm has been granted, prior to instructing his own firm a deputy must:

i. obtain three quotations for the work contemplated from providers of legal services who are properly qualified and appropriate to undertake the work. One of those quotations may be from the deputy’s own firm. The obtaining of quotes must be done in a way which is proportionate to the magnitude of the costs involved and the importance of the issue to P. Both monetary and non-monetary significance to P will be relevant; then

ii. make a best interests decision as to which of the three providers to instruct, and document the decision-making process; then

iii. where the deputy’s best interests decision is to instruct his own firm and the anticipated costs exceed £2 000 + VAT, make an application to the court for specific authority; and

What if the deputy is not the instructing party?

“Specific authority is required for a property and affairs deputy to use P’s funds to pay a third party’s costs. The ‘general’ authority of a property and affairs deputyship does not encompass such a use of P’s funds.” Legal expenses were highlighted as an example of what could be considered as ‘costs’. Even if they are a family member, best interest checks and precautions must be followed.

P has capacity for instruction

If P has capacity to give instructions for a specific piece of work, then he will also have capacity to agree the costs in question.”

ACC Case findings

Judge Hilder was ‘satisfied that it is in the best interests of ACC now to authorise the deputy to pay the costs of the challenge to her Education Health and Care Plan, subject to assessment by the Senior Courts Costs Office and up to a limit of £2 500 + VAT (inclusive of the sum of £906.10 that has already been assessed by the SCCO.)’

JDJ Case findings

It is appropriate in this matter to authorise the deputy to pay from JDJ’s funds the costs incurred in the proceedings to challenge his Education, Health and Care Plan, subject to assessment of those costs by the Senior Courts Costs Office.”

However the Judge highlighted that specific authority is required to challenge a care plan being cancelled.

It was not within the “general” authority of the deputyship orders made on to use JDJ’s funds to pay legal costs incurred by his parents.

Nor was it within the authority of those orders to act in respect of a welfare issue, other than to make an application to the Court of Protection for directions/further authority. Payment was authorised because there was a good reason the urgent request, and costs the family incurred were significant, and leaving JDJ’s parents out of pocket would not have been in JDJ’s best interests.

Hilder J emphasised that the Court will not lightly authorise actions retrospectively when there is no good reason why authorisation was not sought prospectively.  

HPP Case Findings

Despite a conflict of interest in Ms. Waite instructing Irwin Mitchell LLP, Judge Hilder reluctantly agreed that it was in HPP’s best interests for the solicitors who were familiar with his case to be allowed to continue.

CASCAIDr does not (yet) get involved in this sort of case, because we are not (yet) able to provide reserved legal activities and we cannot represent people in contentious litigation. However, we do work with law firms that provide legally aided services, in the Court of Protection and in the Administrative Court for judicial review. So please feel free to seek initial advice from CASCAIDr via our referral form on the top bar menu of the site.

The report can be found here

https://www.bailii.org/ew/cases/EWCOP/2020/9.html
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error

A Local Authority and SF

[2020] EWCOP 19

Date: 20/04/2020

What Happened

X was a 20 year old woman with autism who received 24 hour care at a supported living placement.

In September 2019 the staff at her placement became very concerned that X was in contact with several men via social media and dating websites.

A number of these men had come to her placement and engaged in sexual relations. Only one of the men was actually identified, referred to here as ‘B’.

In January 2020 the Local Authority applied for an injunction against B to stop him from visiting X’s placement (pursuant to s.16(5) and s.48 of the Mental Capacity Act 2005), and then in February they applied for an injunction to stop ‘unknown persons’ attending her placement.

The Court of Protection Judge decided that X lacked capacity in regard to making decisions about her use of social media and internet use, and that it was in her best interests not to have any further contact with B, and therefore granted the injunction.

Issues arose regarding the Court of Protection’s power to grant injunctions. The judge discharged the original injunction, and then made an injunctive order against B in the same terms, but pursuant to the jurisdiction of the High Court.

The Judge then sought to determine whether the Court of Protection had the power to make injunctive orders and, if so, from which provisions of the Mental Capacity Act 2005.

What was found

The Judge stated that the Court of Protection ‘does indeed have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.’

In deciding that, he considered;

  1. s.47(1) of the 2005 Act is drafted in wide and unambiguous terms”

s.47(1) states that “The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”.

  1. it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the Senior Courts Act 1981 to grant injunctive relief”

The High Court can make interlocutory injunctions by virtue of the provisions of s.37(1) of the 1981 Act, and s.47(1) highlights that the CoP has the same powers, rights privileges and authority as the High Court. Therefore, should have the power to grant an injunction.

  1. s. 48 of the 2005 Act states that the court has the power to make interim orders or directions … if it is in P’s best interests to do so.
  2. s.17(1)(c) of the 2005 Act permits the court to “prohibit contact between a named person and P”, which further supports the power to make injunctive orders by the CoP.
  1. it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act.

The Judge stated that “the provisions of s.16(5) are drafted in wide terms and enable the court to ‘make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)’”

  1. finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

The Judge was further persuaded that the CoP had the power to grant injunctions as both Hayden J. and Cobb J. were of the same view;

“Counsel for the Official Solicitor referred me to the three authorities set out above. In the case of MASM (above) paragraph Hayden J. said, “The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014)”.

And later at paragraph 39 he said, “Section 16 it must be noted is framed in terms of the court making ‘orders’ and ‘decisions’ rather than the ‘declarations’ contemplated by Section 15. In this area Section 15 largely replaces the High Court’s Inherent Jurisdictional powers under which aegis the Family Division, prior to the Mental Capacity Act 2005, made declarations in respect of mentally incapacitated adults in regard to medical treatment and personal welfare.”

In the case of Re Leslie Whiting (above) Hayden J. made the following observations at paragraph 20, “The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny.”

Earlier in his judgment at paragraph 11 he had noted that, “On 28th November, the case was transferred to the High Court because, as I understand it, it was thought that the offices of the Tipstaff might be required. That is, of course, concerned with the apparatus of enforcement but it is perhaps important to note that section 47(1) of the Mental Capacity Act 2005, which relates to the general powers and effect of orders et cetera made in the Court of Protection provides: “(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.””

The factual background to this case and early history of the orders made in this case are set out by Hayden J. in paragraphs 7 and 8 of his judgment,

“Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.

On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows: “

Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”

He concluded the judgment at paragraph 20 with the following words,

“Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.”

In the case of North Yorkshire County Council (above) Cobb J. had made injunctive orders against an individual who posed a risk of harm to the vulnerable incapacitous adult who was the subject of the application in the Court of Protection. The factual matrix is set out in paragraphs 2 & 3 of the judgment of HHJ Anderson, before whom committal proceedings were listed for alleged breaches of the injunctions,

“The first of those injunctions was made without notice to George Elliot. The injunction order was set out in clear terms. The injunction prohibited him from contacting or attempting to contact the young woman who is the subject of these proceedings whether directly, face-to-face or indirectly by any means whatsoever including telephone, texting or messaging, email, Skype, FaceTime or through any social media platform including, but not limited to, WhatsApp, Twitter, Instagram or Snapchat”

At the time of that hearing, George Elliot was in prison following an alleged breach of a sexual harm protection order. The second injunction was made in his presence at an on-notice hearing, again before Cobb J. That hearing took place on 21 January 2019. Mr Justice Cobb amended the terms of the first injunction to make them more precise. It seems that the aim of the judge was to make it clear to Mr Elliot that the injunction included a prohibition on any communications even if initiated by the young woman at the heart of this case. So, therefore, an injunction was made in Mr Elliot’s presence prohibiting him from communicating with or attempting to contact her, whether directly, face-to-face, et cetera. The word “communicating” was put in the injunction in place of “contacting”

At paragraph 10 of her judgment HHJ Anderson said,

“I must take into account that this injunction was made in the Court of Protection to protect a vulnerable person from contact with Mr Elliot. I take into account that the terms of the injunction were spelled out clearly by Cobb J to Mr Elliot directly in court. The breaches were deliberate breaches of the court order where Mr Elliot had a choice and took the decision to breach the order.”

The judge discharged the “just in case” injunction against X under the jurisdiction of the High Court, and substituted it for an injunction in the same terms, made in the Court of Protection.

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error

Ali Raja & Anor, R (on the application of) v London Borough of Redbridge (Rev 1) [2020] EWHC 1456 (Admin) (05 June 2020)

What Happened

This case involved two adult men (A and B), aged 25 and 32, with severe physical and learning disabilities who lived with their mother (X).

A and B had extensive night time care needs. They needed to be repositioned numerous times to avoid pressure damage, and it was assessed in a 2017 care plan that X could “reasonably be expected to reposition her disabled sons at night-time, single-handedly”, despite X having her own health issues. She was not unwilling at the time, it should be noted, or dissenting from this view.

In July 2019 they sought urgent interim night time care as their mother’s health had declined and she said she could no longer cope with caring for her two sons without support. This was repeatedly declined.

The High Court granted interim relief (10 hours per day funded night time care) on the 12th of December 2019, and again confirmed this in January 2020 when the deputy judge continued interim relief and granted permission for judicial review.

The Law

The judge referred to an important case by way of background, for the uninitiated – R (GS) v Camden LBC [2016] EWHC 1762 (Admin) [2017] PTSR 140 at paragraph 19:

“The way the Care Act works is as follows:

Where it appears to a local authority that an adult may have need for care and support a care ‘needs assessment’ must be carried out by the local authority under section 9.

Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Eligibility Regulations.

If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18.

If the assessed needs are not eligible needs than the local authority has power under section 19 to meet those needs.”

Mr Justice Fordham added:

“Section 19(3) empowers the local authority to “meet an adult’s needs for care and support which appear to it to be urgent… without having yet

(a) carried out a needs assessment or a financial assessment, or

(b) made a[n eligibility] determination under section 13(1).”

Section 24(1)(a) requires a local authority, when acting under sections 18 or 19(1) to “prepare a care and support plan or a support plan for the adult concerned”.

Under section 25(1), the plan must specify the assessed eligible needs which the local authority is going to meet and the way in which it is going to meet them.

Section 27 provides for [existing] plans to be reviewed and revised, including a duty of re-assessment and re-determination in materially changed circumstances, and specifies how the local authority is to approach review and revision.”

The Statutory Guidance states that ‘urgent’ must take its everyday meaning, and “where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow.”

Councils using a Three Conversations approach may need to consider whether their response to Conversations One and Two actually complies with this Guidance, it is suggested, in light of this case.

Rolling’ Judicial Review

This case is an example of a ‘rolling’ judicial review where some issues get resolved en route to court but there is something remaining still to be sorted out.

R (XY) v Secretary of State for the Home Department [2018] EWCA Civ 2604 [2019] 1 WLR 1297  discussed “rolling reviews” and concluded: “there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties”.

Mr Justice Fordham stated

“This case called for, and illustrates the appropriateness of, the procedural flexibility which the Courts have described. The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court.

The central features of the case as brought were: a continuing statutory function regarding the meeting of needs; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response or not, such that if it was, the refusal was unreasonable in a public law sense.

The discipline came from being able to see clearly the basis on which the claimant says that the defendant is unlawfully failing to comply with a public law duty to act reasonably; and the basis on which the defendant says that its refusal is reasonable.

This approach could take in its stride the reality on the ground, that the parties would continue to communicate about the disputed issue between them.

There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded. The interests of both parties were protected, as the story of the case unfolded.”

Sole Justifiable Response

The central question which arose in this case… was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers, pending a full reassessment of needs.”

“The grounds for judicial review put the ‘sole justifiable response’ point as follows:

(a) There is an urgent need for interim care because the claimants are known to require 24-hour care and [the mother] is no longer able to provide it at night;

(b) The only justifiable care to meet this need is funding for 10 hours’ night-time care per day …”

“that immediate funded night-time care is the sole justifiable response to meet their urgent needs”.

The defendant council argued that an interim injunction requiring night time care under section 19(3) was the wrong power to cite as the power in question:

“section 19(3) is only applicable before an initial statutory needs assessment has been conducted: “section 19 is without any application in this case”, since the claimants “seek … a reassessment and not an initial assessment of their needs”.

Secondly, where there have been prior assessments, and where there is a pre-existing care and support plan, the applicable statutory function to address any necessary additional action is “a review under section 27”; and “[u]ntil that review has been completed, the obligation on the Defendant is to meet the claimants’ needs as already assessed“.

Thirdly, in the context of a review under section 27, “if there was an obvious case for intervention, such as an emergency, or an easy adjustment to make… interim arrangements could be made”. This explains the passage in the Guidance at paragraph 13.34, referring to “interim packages to urgently meet needs while the plan is revised”. Such urgent interim action would “need to be provided under section 27, and in particular section 27(4)” [not under section 19….]

The defendant council actually suggested that since the claimants had, throughout, nailed their colours to the mast of section 19(3), the claim must fail for identifying the wrong power. “That is so, even if the defendant is acting unreasonably in failing to provide urgent interim care provision.”

Mr Justice Fordham disagreed with this view (unsurprisingly in our view);

“The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3).

As the Guidance emphasises (paragraphs 13.8 and 13.27), the section 27 review and revision functions can engage the conduct of a further assessment under section 9(1).

The point can straightforwardly be tested by taking section 27(4). It provides as follows: “Where a local authority is satisfied that circumstances have changed in a way that affect care and support plan or support plan, the authority must – (a) to the extent it thinks appropriate, carry out and needs or carer’s assessment, carry out financial assessment and make a determination under section 13(1), and (b) revised care and support panel support plan accordingly.”

The “needs… Assessment” referred to in section 27(4)(a) would be a section 9(1) “needs assessment” (we are not sure the judge is 100% right about that, because s27 very carefully avoids referring a council back to s9, which would have been the obvious thing to do: it refers to a proportionate reassessment that is possibly a process out there all on its own, as is the care planning equivalent after a revision, but we do not think that it matters in the context of this case).

In the period of time before that section 9(1) needs assessment has been “carried out”, it would be a “needs assessment” which has not “yet” been carried out.

If section 9(1) applies, why not section 19(3)? On the natural and ordinary meaning of the words, section 19(3) would straightforwardly apply to that situation. This is a benign and protective interpretation. It means, simply, that the local authority has the discretionary power to meet care and support needs “which appear to it to be urgent”. It is especially important, given that Parliament referred to revision of the plan as being a step taken after the carrying out of the relevant (4)(a) assessments. That is a very strong indication that urgent needs, pending assessment, would be met not by urgent revision of the plans but by (3) urgent meeting of needs by way of provision of care and support.

It follows, from an examination of section 27(4) alone, that section 19(3) is not in principle restricted to the initial contact stage, and the position prior to the carrying out of a first “needs assessment”. It is to be noted that in section 19(3), Parliament spoke of the local authority as not “having yet – (a) carried out a needs assessment…”; it did not say “having yet – (a) carried out any needs assessment”.

The defendant had agreed from August 2019 onwards to carry out a full reassessment of the claimants’ needs for care and support. That full reassessment would constitute “a needs assessment” for the purposes of section 9(1).

In Mr Justice Fordham’s view, the previous judges’ granting of interim care, were orders relating to the taking of steps which the defendant had the legal power to take, pursuant to section 19(3). 

He stated that the defendants did also have the power to take urgent action pursuant to section 27, which empowers the local authority to revise a care and support plan.

“An urgent revision to a care plan could be made, and that could have been done in the present case. That could, moreover, be especially important if there is a situation where there is something temporary and urgent but where everyone agrees that there is no question of carrying out a further section 9(1) assessment.

In a case where there is to be a section 9(1) further assessment, the local authority has two overlapping powers. They operate in accordance with the ordinary and natural meaning of the words chosen by Parliament, to enable a local authority to respond to urgent needs. This approach is supported by paragraph 13.34 of the Guidance which contemplates that urgent care provision may be implemented not just through an urgently revised plan, but also “to urgently meet needs while the plan is revised.”

Mr Justice Fordham went on to identify three key themes in the defendant’s refusal to grant interim relief;

  1. “The defendant’s ‘inability’ to make any change without a reassessment of needs.

The defendants stated they were “not able to make changes to [the claimants]’ care support plans without completing a reassessment of their needs”. It described a needs assessment as being “required before we instil any change in the care package, urgent or otherwise”.

This language “was an unfortunate overstatement of the position.”

“The statute entrusted the defendant with a discretionary power to act without having completed a reassessment. It did so, even on what emerged as the defendant’s analysis of section 27. A discretionary power, together with repeated requests that it be exercised, required the defendant to address whether to exercise it. Instead, the language of the refusals ruled it out. In concrete human terms, the central question was whether the mother could reasonably be expected to continue to undertake the care provision of repositioning her sons at night, single-handedly? If the local authority was reasonably satisfied that she could, then it could justify refusing to provide urgent interim care. If, on the other hand, the local authority was reasonably satisfied that she could not, then I cannot see how it could in those circumstances justify refusing the urgent interim care provision. In the latter scenario, it would be “able” to make the provision, and the needs assessment would not be “required” before it did so. It needed to ask and answer the question.”

  1. “The defendants had a ‘health and safety’ concern about whether carers could be expected to reposition the claimants without appropriate equipment having first been installed.

The defendant said: “the local authority cannot send staff to undertake night-time care without the proper equipment in place” and “there are health and safety issues that the local authority required to consider[] before sending its staff, if any”.

“There can be no doubt that the defendant was reasonably entitled to be concerned about, and wish to evaluate, equipment and health and safety. However, that could not of itself be a complete answer to whether there was or was not an urgent need, justifying immediate interim action, notwithstanding that the health and safety assessment had not yet taken place.”

  1. “Whether the claimants’ solicitors had provided proper evidence to support the urgent need that they were describing as calling for urgent interim care provision.”

The defendants had argued that the evidence supplied by the occupational therapist did not stipulate that 24 hour care was ‘required’ or ‘urgent’. It stated in both the recommendations only that:

‘[the service users] would benefit from 24-hour care and support as his home environment. He has complex manual handling needs and care needs to justify this level of provision’.

Mr Justice Fordham stated that “In my judgment, the expert reports put forward could not reasonably be regarded as failing to “stipulate” that the additional night-time care and support was “required”, or “urgent”. The key reason given in legal services’ letter focused on the use of the language “would benefit from …” However, a full and fair reading of the reports show that they went far beyond recommending a course as being beneficial or optimal. In his careful and detailed reasons for the grant of interim relief on 12 December 2019, the judge Sam Grodzinski QC said this:

“a need for night-time care is clearly supported by the OT reports, and by what [the mother] states (supported by medical evidence [in] the bundle) about her physical inability to carry on providing such care at night time. The defendant’s… letter takes issue with whether the care needs are urgent, and notes that the OT report states that ‘[the claimant] would benefit from 24-hour care and support in his home environment’ (my emphasis). However, I do not interpret that sentence as implying that such care is regarded by Ms Hillier as an optional or aspirational benefit, rather than an immediate need in particular when the reports are read as a whole.

Mr Justice Fordham stated “I entirely agree with that assessment and cannot improve on it… In my judgment, for these reasons…the defendant was not acting reasonably – in the light of the experts’ reports put forward in October 2019 – in refusing to exercise its discretionary power to provide urgent night-time care and support. Nothing in the documents provides reasonable support for any conclusion that the mother could reasonably be expected to reposition the sons at night, single-handedly. Indeed, I have been able to find no evidence that the defendant – and certainly anyone with decision-making responsibility – asked itself that question and, if they did, as to how they answered that question. It follows that I do not accept Ms Rowlands’ submission that there was no unlawfulness as at the date when proceedings were commenced.

The mother’s continuing support

The defendants argued that that night time care was not urgent, because documents served on 23 April 2020 showed that X continued to reposition her sons herself at night-time, even with two carers in the house. X described herself as “always present at night, and “offers additional support”, stating that “she often sleeps next to [the second claimant], in order to offer him night time support”, “Before we had overnight carers, I would be solely responsible for providing any support, apart from during periods of respite. However, I still choose to assist the workers when they provide physical support.”

The defendant argued that this supported their view that X could meet their night time needs.

However, X explained to the court, using evidence from her GP, why she could no longer be expected to cope or really cope with the physical demands.

“I need surgery to relieve pressure on the spinal nerve which gives me quite a lot of pain when bending. Proposed surgery has a recovery period of 6 weeks, but without support I would have to continue my caring duties without a break. In my present condition I am unable to walk except for short distances indoors at home and not at all outdoors. I am in pain when I stand and can only do so for short periods. I have had a further MRI scan which shows a degenerative problem in my spine which is unlikely to be fixed by surgery. I also have the problem with my right shoulder which are reported to my GP and 2018, and pain to my knees and neck which I’ve been told is due to degeneration and I think the prognosis is not good. In addition, I have high blood pressure. Caring for the claimants is extremely physically demanding. The most physically demanding part is turning them at night, and as I explained in my first statement, I cannot physically do it anymore.”

Mr Justice Fordham highlighted that “the Court was shown no document which addressed the question whether the mother can reasonably be expected to reposition her sons at night, single-handedly, and concluded that she could.”

Conclusions

“The sole justifiable response was the continuation of the urgent interim care provision requested by the claimants, which became the subject of the interim relief orders of the court, which orders have now fallen away. I am satisfied that section 19(3) is a statutory discretionary power which was relevant and applicable in the present case. I am satisfied that the defendant could not justify as reasonable its refusal to act.”

“Until the documents disclosed on 23 April 2020, nobody grappled with the central, straightforward question in this case. Was the mother reasonably to be expected to reposition the claimants during the night-time, single-handedly?”

“The claim for judicial review succeeds. In all the circumstances, I will grant the remedy sought. I will convert into a final mandatory order the order made by way of interim relief by Mr Grodzinski QC on 12 December 2019 and continued by Mr Roger ter Haar QC on 15 January 2020. I have a discretion as to whether to order a remedy. I am satisfied that it is appropriate in this case to do so. The fact that the order embodies what I was told at the hearing is now a decision of the defendant is something which can be recorded in an appropriate recital. I regard as healthy the congruence between what I am ordering under my secondary, supervisory jurisdiction based on public law principles of review, and the position to which the defendant as primary decision-maker dealing with the merits has come in the end. Moreover, the story and circumstances of this case, including the fact that there was no decision letter communicating the new decision, reinforces my view that what is needed, in the current circumstances, is clarity.

What the defendant ultimately decides, once the various steps identified have been carried out, will be a matter for the defendant as the primary decision-maker under the statute. It goes without saying, but perhaps in the circumstances it is worth recording, that that ultimate decision will be the one which the defendant conscientiously considers to be correct, on the merits. In public law terms, it will need to be one which is justifiable as reasonably open to the defendant, on the evidence before it, for the reasons it identifies.”

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error

LB Tower Hamlets v A (by her litigation friend the Official solicitor) & KF [2020]

Keywords: Capacity, Accommodation

A was 69 years old and had a diagnosis of Korsakoff’s dementia.

She had no children and her former husband had died. She has many caring friends who have taken an active part in her life and in these proceedings. She had lived in her flat, of which she was clearly very proud, for more than twenty years. About three years ago A suffered a stroke. Shortly afterwards she executed Lasting Powers of Attorney for both property and welfare. KF was one of the joint and several property attorneys, and the sole welfare attorney.

All parties agreed that she lacked capacity to decide care. She had been admitted, temporarily, to a care home, following a period in hospital as a result of a fall at home and significant confusion, and the issue was now whether she had capacity to decide whether to remain in the care home or return to her own home with a package of care.

Capacity assessments undertaken whilst A was in hospital had found her to lack capacity to decide where to live. A social worker familiar with A had concluded that she lacked capacity to decide where to live on the grounds that she lacked capacity to decide on her care needs and that those needs were crucially relevant to the decision about where she should reside. Similarly, a psychiatrist has also assessed her as lacking capacity to decide where to live because, in his view, A’s denial of her memory problems and lack of understanding of and inability to retain information about her support needs meant that she was unable to understand the relevant information. Further assessments, undertaken in the DOLS process shortly after her arrival in the care home had concurred with these views.

However, an independent psychiatrist jointly instructed by the parties, who assessed A after she had been in the care home for a longer period, considered that her presentation in hospital had been additionally affected by delirium due to an infection, which had now gone.

Additionally, he felt, her cognitive functioning had benefitted from good nutrition and abstinence from alcohol during her stay in the care home.

His view was that, despite lacking capacity to decide her care and to manage property and affairs, A did now have capacity to decide whether to live in residential care or in her own home. He identified that A was able to write down information and use her notes to prompt her recollection and that she was able to understand and weigh the risks and factors she considered important in deciding between returning home with a package of care and remaining in residential care and retain this knowledge for long enough to reach a decision.

This included her understanding of the ‘conditions’ she would have to abide by (such as abstaining from alcohol and accepting care visits) as part of a care package at home and the consequences of failing to comply with these (i.e. a return, permanently, to residential care).

A was visited by her solicitor who explained to her the idea of a care package being provided in terms that there may be ‘conditions’ to her being able to return home. The attendance note records A asking essentially how it would be known if the conditions weren’t met, and then answering her own question: “if I damage myself, or their snooping snoops smell my breath from a quarter of an inch away.” She added “this is blackmail.”

A expressed positive views about C Care Home: “It’s a decent place, run by decent people. They are there to help, not hinder unnecessarily, though obviously they wouldn’t let me get into trouble.” When asked if there was a part of her which would rather remain at C Care Home, A replied “no, but I can understand why you ask that. I would never have imagined having a wobble. It is the prospect of being monitored; it feels like a prison. This place doesn’t.”

In fact it is lawful for a council to make an offer dependent on lawfully relevant conditions, such as controlling tendencies that render the service useless, or make life impossible for carers.

Crucially it was acknowledged that the chances of A actually complying with the conditions might well be below 50%, but that did not necessarily indicate a lack of capacity to make the decision.

She was recorded as saying “I can do as I’m told. It doesn’t mean I have to like it.”

The judge spoke with A, about her wishes and feelings and understanding of what was on offer, and he reported as follows:

“A was very articulate. She told me that her overwhelming feeling was that she would like to get back to her flat and her life. She said she had learned a few lessons, including that she should take more care, and that she is now slightly sadder and wiser than she was previously. A said that the people at C Care Home are nice and the place is comfortable but it is not her home, not where her life is, not where she wants to be. When I explained the proposal for carers, A told me that she “didn’t have an option.” She was able to repeat back to me after a few minutes (and seemingly by reference to her written notes) all four of the “conditions” by which the success of a return home would be measured. She said “I realise that I am not going back to my old life.” “

The Local Authority argued (citing B v A Local Authority [2019]) that the decisions about care and residence could not be considered in ‘silos’, because of the implications of one decision for another.

The judge acknowledged that there was overlap between the factors relevant to each of those decisions, but concluded “Overlap does not however imply that a decision in respect of residence somehow incorporates a decision in respect of care … it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. Rather, as Theis J identified, what is required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her.” [para. 65]

A very good and long-standing friend of A’s observed that now A’s “emotional self-sufficiency gives the impression of someone far more intelligent and in control of life than is actually the case.” He never realised that there was such a significant issue with alcohol. He too concluded that, if A returned home, he “would resign all further responsibility for being involved in helping to look after her… To send her home under the illusion that she is an independent intelligence capable of making decisions that are in her own best interests, even with multiple carers visiting and preparing her meals, would only be to hasten her decline still further.”

So capacity here was indeed a finely balanced question.

The judge considered what constituted relevant information for the decision as to accommodation generally (derived from LBX v. K, L, M [2013]) and narrowed down those elements relevant in this case as:

a. what the two options were;

b. in broad terms, the care which would be provided to her in each place (including that, in her own flat, carers would visit her several times each day);

c. that the option of living in her flat would be initially on a trial basis for up to 4 weeks;

d. that the trial of living in her flat would be considered successful if A engaged with the carers, took her medication, maintained appropriate nutrition and abstained from alcohol;

e. if the trial of living in her flat were not considered successful, it would end and she would return to C Care Home.

Observing the influence of a protective imperative on the opinions of some of the professionals involved, the judge highlighted the need to formulate an objective assessment of whether A, after a sustained period of care, was now able to decide between the two identified options for herself.

He noted that, once a best interests decision had been made to accept the care package to be provided to A at home, including the conditions, or the care home, A was able to understand what care would be provided to her in each potential place of residence. Therefore he concluded that she did, at present, have capacity to decide where to live.

The judge said this too:

“If, when the details of the care package are settled, A chooses a trial return home and even if ultimately it is not successful, I would not characterise that decision as “unwise.” Had I reached a different conclusion as to A’s capacity, on the basis of her current wishes and feelings, it is highly likely that I would have agreed with the Official Solicitor that the proposed return to live at home with a package of care should be tried. For A as much as anyone, home is more than ‘just bricks and mortar.’ “

Public Law point

There are some interesting titbits in the judgement which shed intriguing light on the Local Authority’s decision-making under the Care Act. The judge notes that the Local Authority failed (twice) to actually produce a social care assessment of A’s needs if she returned home, despite being ordered by the court to do so.

The Official Solicitor pointed out that there needed to be further exploration as to the minimum practicable care package required. However, the Applicant Local Authority has prepared a “proposed support plan” which they were ‘willing’ to provide, setting out a suggested daily timetable for personal care support and visits of 2 hours duration on Mondays and Thursdays to support activities in the community for leisure, appointments, shopping and so forth.

It very much underlines the difference between the jurisdictions of the Court of Protection and the Administrative Court (judicial review). Given the impossibility, under the Care Act, of arriving at a view of the proposed care package without regard to any assessment of the needs to be met, any judge in the Administrative Court would have insisted on a proper assessment before any arbitrary package of 3 visits a day!

We think that the experts should have known enough about the Care Act to insist that that process should have been a precondition of their own input on capacity, because if there was no plain straightforward statement of what were regarded as eligible needs, how could she, or her financially authorised representatives decide what to spend her money on, one way or another? And how could the experts properly explore her understanding of that minimum practicable offer, properly?

Full text at: https://www.bailii.org/ew/cases/EWCOP/2020/21.html

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R (on the application of WP (POLAND)) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)

What Happened

A 38 year-old Polish national was admitted to a psychiatric ward in 2019 having been found partially clothed and wandering outside. Her medical records showed an extensive history of mental health issues, and led to a conclusion that she was not fit to be detained and should instead be taken to hospital.

In December 2019 she was sentenced to 2 weeks’ imprisonment for public order offences. The decision was made to send her to an immigration detention centre and seek her removal from the UK.

C appealed this decision, which was delayed due to the COVID19 pandemic.

On 22nd Febuary 2020 a rule 35 report completed by a medical practitioner highlighted that C’s mental state would deteriorate if she were kept in detention.

On the 25th Feb the defendant (the secretary of state (SSHD)) requested further evidence of the risk of C’s wellbeing deteriorating, before granting accommodation under schedule 10 of the Immigration Act 2016.

On the 5th March the defendant accepted that C qualified as a level 2 risk, so should therefore be released from the detention centre when accommodation was found for her.

The SSHD officially confirmed C was entitled to accommodation under sch. 10 on the 2nd April. However, due to COVID, they stated they could give no timeframe for when accommodation would be available.

C complained that there was an unreasonable delay in the SSHD confirming she was entitled to accommodation under sch.10. She said that it was clear from as early as January (when she was first placed in the detention centre) that she was vulnerable, yet it still took four months to confirm her eligibility. She said that the application should have started well before April.

What was found

Schedule 10 para.1 of the Act confers powers on D to grant bail to a detained person. 

Schedule 10 para.9 confers the power to provide accommodation to a person who has been bailed if the defendant believed that there were exceptional circumstances which justified the exercise of that power.

Very importantly for the exercise of functions during the Covid 19 period under the Care Act easements, the court found that even though there was only a power, rather than a statutory duty to grant immigration bail at all, it carried with it, there was an obligation to determine an application for sch.10 accommodation fairly and rationally, and to act reasonably to obtain accommodation within a reasonable period.

The SSHD policy stated that if a person was under bail, did not have access to accommodation and ‘faced imminent suffering due to the denial of food, shelter and basic necessities’, then they should consider if there was a duty to provide accommodation under ECHR art.3 (freedom from inhuman or degrading treatment).

There was no doubt that C was eligible for accommodation to be provided by the SSHD. Therefore this placed an obligation on the SSHD to find accommodation in a timely manner.

The Court then had to consider whether the Secretary of State had taken reasonable steps to find accommodation without excessive delay, and if it had failed to do so, then the Court could make an interim order.

Here the Court was sympathetic to D’s circumstances, dealing with unforeseeable challenges during a worldwide emergency. However, after considering C’s history, and the fact that she had been detained for 4 months despite medical professionals expressing concern for her wellbeing, the Court granted an interim order.

The order gave the SSHD 7 days to make accommodation available for C.

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