Category: Case comments

What’s the permission threshold?

In Re D (A young man) [2019] EWCOP 1, Mostyn J had to consider a question that had previously been the subject of only very limited judicial consideration, namely the test for permission under s.50 MCA 2005. The case concerned a young man, D, aged 20, with autism. He had been looked after by his father and his stepmother, C, since the age of 3.

D’s mother, who was subject to a civil restraint order, applied for permission to make a substantive application concerning the nature and quantum of her contact with D. Mostyn J granted her leave under the terms of the civil restraint order to make the application for permission to make the application itself.

Under the terms of ss.50(1) and (2) MCA 2005, the mother needed permission to make a substantive application as she did not fall into one of the categories where permission is not required set out in section 50(1). Section 50(3) provides:

In deciding whether to grant permission the court must, in particular, have regard to –

(a) the applicant’s connection with the person to whom the application relates,

(b) the reasons for the application,

(c) the benefit to the person to whom the application relates of a proposed order or directions, and

(d) whether the benefit can be achieved in any other way.

Mostyn J noted that:

4.  A permission requirement is a not uncommon feature of our legal procedure. For example, permission is needed to make an application for judicial review. Permission is needed to mount an appeal. Permission is needed to make a claim under Part III of the Matrimonial and Family Proceedings Act 1984. In the field of judicial review, the permission requirement is not merely there to weed out applications which are abusive or nonsensical: to gain permission the claimant has to demonstrate a good arguable case. Permission to appeal will only be granted where the court is satisfied that the appellant has shown a real prospect of success or some other good reason why an appeal should be heard. Under Part III of the 1984 Act permission will only be granted if the applicant demonstrates solid grounds for making the substantive application: see Agbaje v Akinnoye-Agbaje [2010] UKSC 13 at [33] per Lord Collins. This is said to set the threshold higher than the judicial review threshold of a good arguable case.

5. There is no authority under section 50 giving guidance as to what the threshold is in proceedings under the 2005 Act. In my judgment the appropriate threshold is the same as that applicable in the field of judicial review. The applicant must demonstrate that there is a good arguable case for her to be allowed to apply for review of the present contact arrangements.

The case had had a very lengthy and unhappy history, contact arrangements between D (at that stage a child) and his mother having been fixed some seven years previously. Having rehearsed the history, the possible scope of proceedings before the Court of Protection and (in his view) the irrelevance of the fact that D had turned 18, Mostyn J held that he applied:

13. […] the same standards to this application as I would if I were hearing an oral inter partes application for permission to seek judicial review. I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted. Fundamentally, I am not satisfied that circumstances have changed to any material extent since the contact regime was fixed seven years ago and confirmed by me two years ago. I cannot discern any material benefit that would accrue to D if this permission application were granted. On the contrary, I can see the potential for much stress and unhappiness not only for D but also for his family members if the application were to be allowed to proceed.

Mostyn J therefore refused the mother’s application for permission.

Comment

Being pedantic, Mostyn J was not correct to say that there was no authority on s.50.   In 2010, Macur J had in NK v v VW [2012] COPLR 105 had refused permission on the basis that she considered that “section 50(3) and the associated Rules require the Court to prevent not only the frivolous and abusive applications but those which have no realistic prospect of success or bear any sense of proportional response to the problem that is envisaged by NK in this case.” Fortunately, not least for procedural enthusiasts, that approach is consistent with the more detailed analysis now given by Mostyn J.

“Finally, a happy ending to a tragic story”

In two excoriating judgments  (London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1) Lambeth CCG (2) [2018] EWCOP 14;  and London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1); and Lambeth CCG (2)[2018] EWCOP 20), Newton J has underlined the disastrous- and costly- consequences of “disorganised, muddled and unfocused decision-making”.  He was highly critical of the the failure of two statutory bodies concerned to make progress in repatriating MCS, a Colombian woman who suffered hypoxic brain injury as a result of a cardiac arrest in 2014. There was no dispute that MCS, as a result of her brain injury, lacked capacity to make decisions about her residence and care, nor was there any dispute that it was in MCS’ best interests to be repatriated to Colombia in accordance with what had been absolutely consistent wishes.

Although proceedings were commenced by MCS’ RPR in 2016 (as a result of the RPR’s frustration with the delay since 2014 to make the repatriation arrangements), it was not until January 2018 that the judge was able to sign off a plan for MCS’ return to her home, which went smoothly and  provided what the judge described as a “happy ending to a tragic story”.

Newton J used uncompromising language in describing the failings of the local authority: “shocking”, “astonishing”, efforts that were “facile.. ineffective” and documentation that was “depressingly scant…unedifying”.  The impact of all of this is graphically summarised at [9] in the first judgment:

“Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.”

Perhaps unsurprisingly, this was followed by an adverse costs order in the second judgment. Newton J commented at [2]:

“Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court’s considerations. However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW [2017] EW COP 7 where the application was “scarcely coherent … totally without merit … misconceived and vexatious”. These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs.”

The judge did not accept that the statutory bodies had been (as they submitted) “assiduous” in trying to arrange MCS’ repatriation.  He did accept that the operation to return MCS to Colombia was novel for those concerned with making the arrangements.  Despite this he was highly critical of the failure to make “basic common-sense enquiries” with the Colombian Embassy and to apply sufficient professional focus.  The judge commented at [4] that

“It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.”

The judge ordered “without hesitation” that the local authority and CCG should fund the costs of the proceedings.  This is an important reminder that simply bringing a case before the court, and achieving the right outcome in the end, will not avoid the penalty of a costs order if there are failings of the magnitude that occurred in this case. The fact that the case involves an issue which may well be novel and operationally complex does not negate the obligation to bring sufficient professional focus to bear in order to draw the case to a timely conclusion.

 

 

 

HRA claims, the Court of Protection and the statutory charge: certainty at last

[We are very happy to publish this guest post from Ragani Lindquist of the Office of the Official Solicitor]

After years of uncertainty and inconsistency over the application of the statutory charge in respect of Human Rights damages claims, the Legal Aid Agency has finally put its position in writing within the adult welfare context, namely that the application of the charge in respect of the welfare proceedings in the Court of Protection can be avoided by ensuring that damages are not pursued or awarded within the welfare proceedings and by keeping the costs of pursuing the damages claim separate. 

This follows hot on the tail of a published position statement concerning the position in family proceedings, where a similar approach is now being taken.  This is a significant shift from the previous indication that, if the claim was in any way linked to the publicly funded welfare/s21A proceedings, a charge from the costs of the original (usually non-means, non-merits tested) proceedings was to attach to any damages recovered, unless costs were obtained for both sets of proceedings.  Given costs orders are rare in welfare proceedings, historically, for a number of claimants, it was often after damages had been ordered or negotiated within the original proceedings, that it became apparent that the charge would effectively swallow up the damages.  This left vulnerable clients in a situation where there was no effective remedy for a serious human rights breach.   This change and clarification in position is welcomed; the LAA’s letter sets out the position in more detail.  Practitioners will note the reference to following the guidance provided by Keehan J in H v NCC and LAA [2017] EWHC 282, which suggests among other things applying for a separate legal aid certificate for the damages claim (paragraphs 115-117).

The Official Solicitor’s office is grateful to all of those involved in assisting to achieve this certainty – there are too many to name them all but particular thanks must go to Chris Buttler from Matrix, Anna Moore from Leigh Day and Andrew Bowmer from Miles & Partners.

 

Supreme Court news

The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D [2017] EWCA Civ 1695.  The hearing has been expedited and listed for 3 and 4 October.  Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.

The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July.  It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.

LPS to go to Parliament

The Mental Capacity (Amendment) Bill has just been introduced to the House of Commons.

The press release explains that

“The reforms seek to:

  • introduce a simpler process that involves families more and gives swifter access to assessments
  • be less burdensome on people, carers, families and local authorities
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • consider restrictions of people’s liberties as part of their overall care package
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

The reforms will also save local authorities an estimated £200 million or more a year.”

The progress of the Bill will be watched by many.

Regional Applications Scheme Launched.

We have been asked to publicise an important change to the way in which health and welfare applications and section 21A applications are issued.

As the regionalisation project moves ahead, these applications will be issued from regional centres, starting with the South West (Bristol) Regional Hub, as from 30 April 2018.

The other regional centres will begin issuing their own applications from 25 June 2018.

This does not apply to serious medical treatment cases or to property and affairs cases.

Practitioners may have received a letter from HMCTS with essential information about how the new process will work, including how issue fees should be paid.  You can read the letter here.

HMCTS explain that they will try to attend user group meetings in the regional hubs before the pilot starts in that reason.

 

Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.

Costs and test cases

In a short judgment Mr Justice Baker declined to award the Official Solicitor his costs after a CCG withdrew applications in relation to a series of test cases.  You can read the judgment here.

The case concerned applications in relation to the living arrangements of incapacitated adults for whom the CCG had responsibility.  All were living in their own home and the CCG sought clarification as to whether such individuals satisfied the “acid test”.  The CCG also questioned whether the responsibility for any deprivation of liberty was imputable to the state solely by virtue of the fact that it provided NHS care for P.  If either the acid test was not satisfied or the arrangements were not imputable to the state, of course, the adults concerned would not be deprived of their liberty for the purpose of Article 5 and thus the CCG would not be required to make an application to court for a welfare order under section 16 MCA 2005.

The Official Solicitor was invited to act for the four adults originally involved in the test case.  Two were not eligible for legal aid and it was not considered reasonable to utilise P’s funds for this purpose.  Subsequently one of these cases could proceed and the CCG applied to withdraw its application because the practical impact would be very limited; the CCG had reviewed its position in light of the OS’ analysis and the CCG considered that both the relevance and the strength of the application had been limited by the Law Commission’s proposed reforms.  The Official Solicitor sought his costs, submitting that in reality the application was akin to a civil claim where he had succeeded.

Baker J refused the application.  He gave no weight to the argument that the costs would be borne by the public purse in the form of the Legal Aid Agency stating that a legally aided party should be treated in exactly the same way as one without a legal aid certificate.  He rejected the application for costs in these terms:

 

(1) I do not accept the suggestion that this was not a typical welfare case. The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced “as a matter of pressing urgency” (see government response 14 March 2018).

(3) It was in my judgment understandable that the applicant sought guidance on the issue of the impact of the “acid test” on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the applicant to raise and pursue this issue.

(4) Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.

(5) Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant’s failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.

(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the applicant decided not to pursue the issue. In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.

Comment:  This is a useful application of the principles concerning costs to an unusual situation namely where an important preliminary issue arises in a “typical welfare case”.  Key to this was the judge’s assessment that it was reasonable for the CCG to seek guidance about the applicability of Article 5 given the significant financial impact in a time of financial constraints had the CCG been successful; but that it was also reasonable to keep the need for the proceedings under review and to seek to withdraw them when the issue, although fascinating, had become academic.