Archive for Care and Health Law Cases

JG, R (on the application of) v LB of Southwark

[2020] EWHC 1989 (Admin)

Case Background

JG was a ‘profoundly disabled young woman’ who requires care and supervision with all aspects of her daily life.

She received care at home, by her parents, and a team of paid carers funded by the Council (the defendant).

Southwark Borough Council had provided JG with care since 2013, using direct payments. She received funding for 58 hours of 1:1 support per week. In addition, her parents received fifteen hours of respite care a week, which they used to pay for 1:1 support, making a total of 73 hours of 1:1 support per week.

Since December 2018 the Council had also been paying for a carer to stay overnight for 8 hours. This was originally made under an order for interim relief in previous judicial review proceedings and since then had been continued on a ‘without prejudice basis’.

The Council now wanted to remove that 8 hours per night funded provision.

JG was assessed in March 2020, by social worker Mr Choudry. The assessment concluded that she needed 2:1 care for two hours a day, but otherwise 1:1 care was sufficient to meet her needs.

JG’s mother applied for a judicial review of the March needs assessment, and also claimed that the Council failed to assess JG’s father and carer (CG).

The March 2020 Assessment

NG highlighted that, in her view, JG’s needs had increased after a hospital stay in late 2019, and that she needed 2:1 care.

Southwark’s Mr Choudry noted that when JG was discharged from hospital, there were no recommendations to increase her care package, there was no OT report to indicate her needs had changed, and her recent behaviour support plan (Feb 2020) also gave no guidance as to whether JG required 2:1 or 1:1 support.

Mr Choudry commented that NG was unable to state fully what the additional support would be for.

He said that NG was acting as a second carer to support her daughter, which in effect was providing 2:1 support, which was not an assessed need, and that she was choosing to act as the second carer.

Mr Choudry “felt that NG’s needs as a carer were overshadowing her daughter’s needs as she felt that the claimant needed additional support to manage her behaviour and she was providing this additional support as a means of managing her daughter’s challenging behaviour without regard to the recommendations of the recent behaviour support plan.”

Mr Choudry also pointed out that there had been “difficulties in arranging meetings with NG and real difficulties in obtaining objective information from her regarding her daughter’s care and support needs”.

All four of JG’s carers however suggested that she needed 2:1 support due to her challenging behaviour and non-compliance with her care at times.

Mr Choudry suggested training for her carers to help them manage her behaviour, and also pointed out that JG had been making progress with her independent living skills whilst attending college.

Mr Choudry concluded that JG would not ordinarily need 2:1 care, but due to the current un-adapted bathroom at home, she did. He said that the adaptation to the bathroom had been an ongoing recommendation and one where NG and CG had not agreed to the works until very recently.

He also concluded that her support was not being implemented in line with her behavioural support plan, for example, he noted that during personal care times the carer and her mother were in close proximity to JG, and that in one instance the carer held her arms and restricted her movements. This caused anxiety to JG, (which would need to be discussed at a best interests meeting as being a restriction and deprivation of her liberty).  Mr Choudry suggested that JG’s anxieties could be reduced by some degree if she was involved in the task, for example giving her a flannel to hold. He stated that carers needed to understand her communication and work at her pace rather than being prescriptive during personal care times.  He felt that “the care workers were not following any techniques from the behaviour support plan in order to manage the behaviour”.

Mr Choudry considered that this equated to care being done ‘to’, as opposed to being done with JG.

NG also said that the claimant needed 2:1 support when out in the community. Mr Choudry stated that until JG’s mobility had been assessed the safest option would be for her to use an attendant-propelled wheelchair and be assisted by one carer.

Mr Choudry noted that JG had an erratic sleep pattern, but was ‘far from being described as an insomniac’, and therefore recommended the removal of the night time carer, which cost the Council £50,000 a year. He suggested monitoring would be more beneficial. He also considered that if JG were living a supported living scheme she would be encouraged to go back to sleep and remain in her room.

He concluded that that the carers’ logs did not indicate that JG had a significant level of need that would warrant additional support which could not reasonably be met by her parents.  

Held

All in all, Judge Allen found aspects of the Council’s case to be materially flawed suchthatthere were numerous challenges on grounds of rationality.

(1) Behavioural Support/Management Plan

Judge Allen stated that there was sufficient evidence that JG’s behavioural plan was being followed, but that Mr Choudry did not examine the evidence sufficiently; “[Mr Choudry’s] conclusion that it was not being implemented was one which did not take full and sufficient account of the full range of the evidence before him. As a consequence, I consider that his report is materially flawed in this regard, going beyond simply disagreement, to failure to take into account all evidence which a reasonable decision maker would take into account.

2) Night-time care

Judge Allen said “The essential issue here is the need to address the relevant evidence about the severity of the claimant’s sleep problems which…I do not consider has been done. Determining that this aspect of the assessment is unlawful does not entail the necessity of £50,000 per year funding having to be provided by the respondent in this regard. Any defects in the decision under challenge are open to being cured by a re-evaluation of the claimant’s needs on the basis of a full consideration of all the relevant evidence. It is entirely possible that a lawful assessment taking into account all the evidence would reach exactly the same conclusion as has been already reached. But the matter can clearly not be prejudged, and my task in this case is to consider the lawfulness or otherwise of the decision rather than the implications that may flow from it, in any event.

(3) Occupational Therapy Evidence

Judge Allen found that it was unlawful for Southwark not to have taken account of evidence of various professionals about JG’s need for a wheelchair when outside her home; “It does not appear to me that there was a sufficient evidential base for the decision maker to come to the conclusions he did with regard to the occupational therapy evidence, and accordingly this aspect of the decision is also, I find, materially flawed.

It was also unlawful to decide JG was eligible for 2:1 care for two hours per day; “It is, as is argued, common ground that the claimant suffers from both urinary and faecal incontinence. She therefore requires showering not only at regular times in the morning but at unpredictable times in the day and night. As is argued, that need is not answered by a provision limited to two hours a day. Given the acceptance of the need in this regard, I agree that the limiting of this to two hours is irrational, and again this element of the decision is materially flawed.

Judge Allen concluded that

“Bringing all these matters together, I conclude that the claimant has made out ground 1 and identified elements of the assessment which are unlawful. This is not just a matter of disagreement. The legal test, as set out above, is a high one, and I have no doubt that Mr Choudry carried out a conscientious evaluation of the claimant’s circumstances. But there were, in my judgment, material pieces of evidence which he did not take into account in coming to the conclusions that he did and that the assessment is, as a consequence, unlawful.”

Carers’ Assessment and sufficient interest to be joined in the case

Judge allen also found that Southwark Council had failed to complete a carer’s assessment for CG.

Judge Allen said: “The defendant argues first that CG is not a party. This point is, in my view, effectively answered by the argument that the purpose of the carer’s assessment is to assess among other things whether the carer is able and likely to continue to be able to provide care for the adult needing care and what support should be put in place to enable that to happen. Clearly, [CG] has a sufficient interest to pursue this point.”

The judgment can be read for free here:

https://www.bailii.org/ew/cases/EWHC/Admin/2020/1989.html

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RE AHK (A PATIENT) (2020)

What Happened

P was 26, and was at end-stage renal failure, and needed inpatient treatment for dialysis. He also had a severe personality disorder, with a history of suicidal tendencies.

In July 2020 he refused dialysis treatment for a ‘significant period of time’, which resulted in a near cardiac arrest. He had also stopped taking his medications and refused blood tests, which meant that doctors did not have access to key medical indicators surrounding his overall health.

In August, the Court sanctioned a regime of coerced dialysis, which involved chemical and physical restraint, in his best interests.

After the Court sanctioned these measures, there was a period where P complied with his medical treatment, without the need for any restraint or coercion. 

Consequently, presumably because he started to resist again, the NHS Trust formed the view that although he lacked capacity a lot of the time, the Court order was no longer in P’s best interests. It sought a declaration that it would be in P’s best interests to provide dialysis only when he was co-operative, but to provide palliative care if he refused.

What was found

The Trust asked for the case to be heard the following week. This meant that the Court would have had to have let the original order stand (the coercive dialysis treatment), whilst knowing that the Trust no longer considered it to be in P’s best interests. Or, it would have to make an order for the interim period, without hearing the evidence, which it stated it was not prepared to do. Therefore, the case was heard immediately.

The critical care consultant found it distressing to recount P’s resistance to treatment, and the measures they had had to take in restraining him. Multiple members of staff were required to hold P’s limbs before sedating him, which was considered by all to have seriously compromised his dignity. It would not have been nice for them either, but the point is that an incapacitated person is entitled to receive care even if they are resisting. Their need is not able to be severed from their incapacity; it is not their capacitated choice to resist.

It was noted that some days P was able to supress his suicidal thoughts, and therefore accepted treatment in order to live, but sometimes he became so overwhelmed that he wanted to die, so then resisted dialysis.

The judgement mentioned that P had a seven-year-old son, with who he had a ‘loving, joyous relationship’. It was highlighted that P’s son, in certain circumstances, was the only reason he wanted to go on. The judgement made no other reference to the son, or consider what may be in his interests.

The Trust was seeking a declaration to reflect the fact that it would be in P’s best interests to give him dialysis when he was co-operative, but if he refused the trust would accede to his resistance and provide palliative care. If he refused treatment, death would likely follow within hours or a few days.

A central question was whether P appreciated the risks.

For P, the situation was a utilitarian calculation of risk: on the one hand death, on the other hope. The trust wanted guidance from the court that they were doing the right thing, or whether his dignity was now so compromised (by the traumatic process of restraint and sedation) that it was wrong to pursue that current treatment plan. That treatment plan did, however, give P a chance of living.

The Court stated that it could not envisage any circumstances where the already sanctioned regime would go against P’s wishes and feelings. It highlighted that it was clear that a psychological care package was key.

Therefore the Court refused to grant the NHS Trust that it would be in P’s best interests to provide dialysis only when he was co-operative, and to provide palliative care if he refused treatment,

The Court endorsed proposal for an interdisciplinary meeting to join the dots between P’s psychological and physical challenges.

I am sorry I can’t find you the case link. It’s an ex tempore judgment and there is no way of looking it up but soon, it will be in the Community Care Law Reports I expect or on the 39 Essex street journal. The reference is  [2020] 8 WLUK 254

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AG [2015] EWCOP 78

The facts

DG appealed a decision made in the Court of Protection regarding her daughter, AG.

AG was a young woman who had a learning disability, autistic spectrum disorder and had suffered from depression. She lived partly with her mother, and partly in her own property.

There were numerous reports and allegations about tensions between DG and AG, which resulted in a safeguarding investigation. This ended with an ‘inconclusive’ determination, but resulted in AG returning to her own property with 24 hour care put in place by the Local Authority.

A few months later, further allegations and counter-allegations were between AG, DG and the care home, that AG was being physically and emotionally abused by DG, that Local Authority care staff were providing inadequate care to AG, that DG was mismanaging AG’s medication and that DG and AG had verbally abused and assaulted care workers. 

The Local Authority applied to the CoP where Judge Rogers made orders that AG lacked capacity to litigate or make decisions about her residence and care, and that it was in her best interests to live at the accommodation identified in the Local Authority care plan (supported living accommodation).  He also stated that it was in AG’s best interests to have contact with DG in accordance the Local Authority’s contact plan (supervised).

DG appealed the decision on four grounds. The major thrust of her argument was that Judge Rogers failed to make findings of fact in relation to the allegations that had triggered the proceedings.

What was found

The appeal was dismissed.

Sir James Munby, President of the CoP, set out five reasons for why he dismissed DG’s main ground for appeal.

1. There is no requirement to establish any ‘threshold’ of wrongdoing in proceedings relating to an adult.  (Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam))

Sir James Munby went on to endorse Wall J’s analysis:

“the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act 1989, “raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.” His answer was as follows (paras 18, 21):

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.

Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

2. Judge Rogers had carefully and accurately weighed the legal consequences of not having a fact-finding enquiry.

Judge Rogers stated, “I bear in mind, however, that those allegations … are strongly denied by DG and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings. I do not hold them in the background, as it were, by way of a suspicion lurking over DG.”

3. The factual context had progressed since proceedings were issued and the Judge was concerned with “future planning”;

Sir James Munby stated that “although the proceedings had been issued against the background of the safeguarding concerns arising out of the various allegations, matters had progressed and the court was faced with a different landscape. Judge Rogers correctly recognised that he was looking at the present position and looking to the future. Given how matters then stood, the degree of enquiry undertaken by Judge Rogers was … entirely sufficient to inform the decisions in respect of future planning for AG that the court was tasked with making. A lengthy and costly finding of fact hearing would have been entirely disproportionate.”

4. There was no suggestion that the independent social worker’s analysis had been adversely influenced by the allegations;

5. DG had not sought to challenge the decision not to hold a fact-finding at earlier hearings, so it was too late.

This case underlines that Safeguarding processes (whatever stage of a quick enquiry, a pre-enquiry conversation or a full blown independent investigator forensic exercise might have been thought appropriate) need not get hung up over the making of ‘findings’ if the person in charge of it keeps in mind that not even the Court will find it necessary to do so in most cases.

The essence of safeguarding, at least where the solution will be found in a change to a public body’s care plan (rather than the suspension, disciplining or professional regulation of a person, or criminal proceedings) is that the commissioning council or CCG doing the paying for the care, IS the decision maker as to what happens next. That legal authority is subject only to the law of mental capacity and public law principles about the adequacy of teh care package in light of all relevant considerations, regarding the Care Act or the framework for CHC. So the hundreds of families who see a decision to start proceedings in the Court of Protection in which they are the defendant, as a personal slight to them, and their care, could perhaps be less anxious and better off understanding that the Administrative Court offers them and their loved ones the means to attack inadequacies in the care plan or the budget at a much earlier point, before things become entrenched and soured by everyone taking offence or gossiping behind the scenes about alleged ‘perpetrators’.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full report can be found here:

https://www.bailii.org/cgibin/format.cgi?doc=/ew/cases/EWCOP/2015/78.html&query=(tenancy)+AND+(%22Mental+Capacity+Act%22)

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R (on the application of JG) v London Borough of Southwark

R (on the application of JG) v London Borough of Southwark

[2020] EWHC 1989 (Admin)

Case Background

JG is a profoundly disabled young woman who requires care and supervision with all aspects of her daily life

She was receiving care at home, by her parents and a team of paid carers funded by Southwark LBC.

Southwark had provided JG with care funding since 2013, by way of direct payments. She received funding for 58 hours of 1:1 support per week. In addition, her parents received fifteen hours of respite care a week, which they used to pay for further 1:1 support, making a total of 73 hours of 1:1 support per week (over 10 hours in every 24 hours).

Since December 2018 the Council had also been paying for a carer to stay overnight for 8 hours. This was originally made under an order for interim relief in earlier separate judicial review proceedings and since then had been continued on a ‘without prejudice basis’.

The Council now wanted to remove that 8 hours per night of funded provision.

JG was assessed in March 2020, by social worker Mr Choudry. The assessment concluded that she needed 2:1 care for two hours a day, but that otherwise 1:1 care was sufficient to meet her needs.

JG’s mother acting as her litigation friend applied for a judicial review of the March needs assessment, and also claimed that the Council failed to assess JG’s father and carer (CG).

The March 2020 Assessment

NG highlighted that, in her view, JG’s needs had increased after a hospital stay in late 2019, and that she needed more 2:1 care.

Mr Choudry oted that when JG was discharged from hospital, there were no recommendations to increase her care package, there was no OT report to indicate her needs had changed, and her recent behaviour support plan (Feb 2020) also gave no guidance as to whether JG required 2:1 or 1:1 support

Mr Choudry commented that NG was unable to state fully what the additional support would be for.

He said that NG was acting as a second carer to support her daughter, which in effect was providing 2:1 support, which was not an assessed need. and was choosing to act as the second carer.

Mr Choudry “felt that NG’s needs as a carer were overshadowing her daughter’s needs as she felt that JG needed additional support to manage her behaviour and she [was choosing to provide] this additional support as a means of managing her daughter’s challenging behaviour without regard to the recommendations of the recent behaviour support plan.”

Mr Choudry also pointed out that there had been “difficulties in arranging meetings with NG and real difficulties in obtaining objective information from her, regarding her daughter’s care and support needs”.

All four of JG’s carers suggested that she needed 2:1 support due to her challenging behaviour and non-compliance with her care at times.

Mr Choudry suggested training for her carers to help them manage her behaviour, and also pointed out that JG had been making progress with her independent living skills whilst attending college.

Mr Choudry concluded that JG would not ordinarily need 2:1 care, but due to the current un-adapted bathroom at home, she did. He said that the adaptation to the bathroom had been an ongoing recommendation but one where NG and CG had not agreed to the works until very recently.

He also concluded that her support was not being implemented in line with her behavioural support plan; for example, he noted that during personal care times the carer and her mother were in close proximity to JG, and that in one instance the carer held her arms and restricted her movements. This caused anxiety to JG, (which would need to be discussed at a best interests meeting as being a restriction and deprivation of her liberty). Mr Choudry suggested that JG’s anxieties could be reduced by some degree if she was involved in the task, for example giving her a flannel to hold. He stated that carers needed to understand her communication and work at her pace rather than being prescriptive during personal care times. He felt that “the care workers were not following any techniques from the behaviour support plan in order to manage the behaviour”.

Mr Choudry considered that this equated to care being done ‘to’, as opposed to being done with JG

NG also said that the claimant needed 2:1 support when out in the community. Southwark accepted that JG had the strength and ability to mobilise herself but required 1:1 care to help and support her. She took long walks each day, up to five hours, the support being funded by Southward. Mr Choudry had recommended that until JG’s mobility had been assessed the safest option would be for her to use an attendant-propelled wheelchair and be assisted by one carer.

Mr Choudry noted that JG had an erratic sleep pattern, but was ‘far from an insomniac’, and therefore recommended the removal of the night time carer, which cost the Council £50,000 a year. He suggested remote monitoring would be more beneficial. He also considered that if JG were living a supported living scheme she would be encouraged to go back to sleep and remain in her room.

He concluded that that the carers’ logs did not indicate that JG had a significant level of need that would warrant additional support which could not ‘reasonably’ be met by her parents who were willing carers.  

Held

Judge Allen said there were numerous challenges on grounds of rationality.

(1) Behavioural Support/Management

Judge Allen stated that there was sufficient evidence that JG’s behavioural plan was being followed, but that Mr Choudry did not examine the evidence sufficiently: “[Mr Choudry’s] conclusion that it was not being implemented was one which did not take full and sufficient account of the full range of the evidence before him. As a consequence, I consider that his report is materially flawed in this regard, going beyond simply disagreement to failure to take into account all evidence which a reasonable decision maker would take into account.”

2) Night time care

Judge Allen said “The essential issue here is the need to address the relevant evidence about the severity of the claimant’s sleep problems which…I do not consider has been done. Determining that this aspect of the assessment is unlawful does not entail the necessity of £50,000 per year funding having to be provided by the respondent in this regard. Any defects in the decision under challenge are open to being cured by a re-evaluation of the claimant’s needs on the basis of a full consideration of all the relevant evidence. It is entirely possible that a lawful assessment taking into account all the evidence would reach exactly the same conclusion as has been already reached. But the matter can clearly not be prejudged, and my task in this case is to consider the lawfulness or otherwise of the decision rather than the implications that may flow from it, in any event.

(3) Occupational Therapy Evidence

Judge Allen found that it was unlawful for Southwark not to have taken account of evidence of various professionals on JG’s need for a wheelchair when outside her home; “It does not appear to me that there was a sufficient evidential base for the decision maker to come to the conclusions he did with regard to the occupational therapy evidence, and accordingly this aspect of the decision is also, I find, materially flawed.

It was also irrational to decide JG was eligible for 2:1 care for two hours per day: “It is, as is argued, common ground that the claimant suffers from both urinary and faecal incontinence. She therefore requires showering not only at regular times in the morning but at unpredictable times in the day and night. As is argued, that need is not answered by a provision limited to two hours a day. Given the acceptance of the need in this regard, I agree that the limiting of this to two hours is irrational, and again this element of the decision is materially flawed.

Judge Allen concluded that

“Bringing all these matters together, I conclude that the claimant has made out ground 1 and identified elements of the assessment which are unlawful. This is not just a matter of disagreement. The legal test, as set out above, is a high one, and I have no doubt that Mr Choudry carried out a conscientious evaluation of the claimant’s circumstances. But there were, in my judgment, material pieces of evidence which he did not take into account in coming to the conclusions that he did and that the assessment is as a consequence unlawful.”

Carer’s Assessment

Judge Allen also found that Southwark Council had failed to complete a carer’s assessment for CG.

Judge Allen said: “The defendant argues first that CG is not a party. This point is, in my view, effectively answered by the argument that the purpose of the carer’s assessment is to assess among other things whether the carer is able and likely to continue to be able to provide care for the adult needing care and what support should be put in place to enable that to happen. Clearly, [CG] has a sufficient interest to pursue this point” – meaning that he could easily have been a proper party, and that a failure to assess him went to the heart of the matter of the extent of NG’s own needs, we think.

All in all, Judge Allen found aspects of the Council’s case to be so materially flawed as to require judicial review.

Commentary:

Reading between the lines, and taking into account the reference to the previous judicial review, we think that one can discern that there is a long standing dispute between this family and the council, and that the council thought that it could win this round. Family carers have to have evidence, just as much as a council’s staff are required to – it’s not always enough to say that ‘x always happens’, or ‘if we did x, then y would inevitably occur’.  When experts’ opinions are paid for in advance of a case, by families with a position to establish, it is inevitable that the experts take on board what the commissioning parents SAY; they do not owe a duty to a court at that point.

The judgment illustrates how difficult to ‘call’ such proceedings can be: the Oxfordshire (Davey) case went the other way (the council won that case) precisely because the social worker was thorough, moderate and conscientious in delivering an opinion that the family’s approach to care was not wholly ideal for the individual. Here, savings of £50K were at stake but Mr Choudry comes over as open and balanced – indeed, is described as conscientious, too – such that Southwark could, in another era, possibly have won this case. There is plenty of case law to the effect that social workers are to be given the benefit of the doubt given the role that they shoulder, in the system, and allowing for differences of professional opinion.

But that overlooks the fact that the courts will have been taking note of increasing lawlessness in Care Act decision-making: witness the upturn in LGSCO upheld complaints, for instance, and the number of those in which the council is simply said to have been acting outside the Care Act, or unlawfully, in light of clearly established principles. And then there has been the recent Redbridge case in which Fordham J came to one of the rarest ever conclusions in Care Act case law – namely that in relation to the exercise of the s19 POWER to meet needs, before an assessment, based on urgency, no reasonable authority could have conceivably concluded that there was any other way of meeting the needs in that case than the provision of 10 hours of paid care a night, to help the physically deteriorating mother cope with the needs of 2 adult sons. In both that case and this, the judges have focused on the sheer absence of engagement, by the staff concerned, with the evidence being put before them. The judges were not saying that the staff could not disagree, it should be noted – and nor need they explain every aspect of their reasoning – but that if they’re going to disagree, there must BE material on which it is objectively legitimate to rely in any such conclusion. That is to say, irrationality can be made out by focusing on the absence of any evidence that the body took account of a relevant considerations – that leaving out of the account makes for a decision that is unlawful in the public law sense, just as much as taking into account of irrelevant conclusions would, too.

https://www.bailii.org/ew/cases/EWHC/Admin/2020/1989.html

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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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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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