COP practitioners need to be aware of the implications of a refusal by King J of an application to extend the one year time limit in AP v Tameside MBC  EWHC 65 (QB). You can read the judgment here.
The claim arose from a familiar pattern of events for COP practitioners: AP had learning disabilities as a result of Down’s syndrome; he lacked capacity to make decisions as to his residence and care as well as to litigate. He was cared from by his mother until 2011 when he was removed by the local authority and placed in respite accommodation for two and a half years until he returned home in August 2013. In the meantime his mother had been acquitted of an offence of wilful neglect in relation to another family member. The respite placement was not a registered care home so DOLS could not be used: nor was an application to the Court of Protection made at any time despite an IMCA suggesting this to the local authority in 2011.
AP was represented (via his family) by solicitors from 2012: a claim for damages under the HRA was issued in 2016.
The court had to decide whether it was ‘`equitable having regard to all the circumstances” to allow an extension under s7(5)(b) HRA 1998.
AP argued that although his lack of capacity did not displace the limitation, it should create a “rebuttable presumption” in favour of an extension. In addition to relying on some delays caused by –for example- problems in securing funding, the claimant argued that the defendant had been on notice of the potential claim at least since the release of the independent social worker’s report.
The local authority argued that the claimant had been represented by specialist solicitors since 2012 and could have brought the claim years ago.
The judge concluded:
- there is no predetermined list of relevant factors in relation to s 7(5) although proportionality will generally be given weight;
- lack of capacity does not “carve out” a rebuttable presumption, although it is a factor to be taken into consideration- here the claimant had family members and specialist solicitors looking after his interests, reducing the weight to be given to this factor;
- the court’s assessment of the merits and value of the underlying claim is a relevant factor.
King J refused to grant the limitation because:
- the delay had been considerable
- the claimant had been consistently represented since 2011 firstly by the IMCA, then his family, and since 2012 by specialist solicitors. It was “inexplicable” that they had not taken steps to protect his position.
- there was a real risk of unfairness and prejudice to the local authority in allowing the claim to proceed – it would be a huge administrative burden
- the claimant would suffer prejudice if he could not pursue his claim but this did not equate to injustice.
This claim was brought in the QBD but the principles governing extension under s7 (5) HRA will also apply in cases where the claim is brought in the COP. It is quite common for a COP practitioner to become aware of a convention violation which may have taken place some time before COP proceedings are brought: for example P may have been placed in a care home in circumstances where the decision-making is very unclear; there may then be a period where P is de facto detained without an authorisation; once one is granted there may be sometime before a s21A challenge is initiated. In cases where the violation can be seen to have been brought to an end with the use of DOLS, then the one year time limit will begin to run from the date the violation ceased. If at the expiry of the one year P was unrepresented because no challenge had been made then clearly this is a factor that would be taken into account (although the fact that an IMCA was instructed was relevant in AP’s case). However a litigation friend for P cannot assume that either the COP or the civil courts will take a relaxed attitude to time limits. Those acting for litigation friends should:
ask themselves at an early stage whether there is any reason to believe that P’s convention rights have been breached;
ensure they diarise the expiry date;
if this has passed, consider asking the COP to grant an extension for a limited period (assuming that it is anticipated that the claim will be brought in the COP), with case management directions;
if it is clear that for some reason it will not be possible to make the application in the COP in time, ask for an extension;
if the intention is to apply outside the COP in the QBD or county court, ensure that a claim is made as soon as possible.