A Local Authority v BF
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2962 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/3046 |
| Date | 21 December 2018 |
[2018] EWCA Civ 2962
In The Court Of Appeal (civil Division)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Hayden)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Baker
Case No: B4/2018/3046
Katie Scott (instructed by the Local Authority Legal) appeared on behalf of the Applicant
Parishil Patel QC (instructed by Bindmans —Pro Bono) appeared on behalf of the Respondent
This is an application for permission to appeal by a local authority against orders made by Hayden J under the inherent jurisdiction of the High Court sitting in the Family Division, in respect of a 97-year-old man (hereinafter referred to as “BF”). The order requires BF until further order (a) not to live or reside at the bungalow which has been his home for many years; (b) not to reside with his son (hereinafter referred to as “KF”) at any other address; and (c) to reside at a care home (hereafter referred to as “B House”) or such other address, excluding his home, as may be agreed between the applicant local authority and BF, the agreement of the local authority not to be unreasonably withheld.
This order is an interim order, expressed to last until a further hearing to take place no later than 31 January 2019 at which Hayden J will consider the local authority's application for discharge of the injunctions. I was told this morning that that hearing has now been fixed for 16 January 2019, that is to say some three and a half weeks hence.
The appeal notice was filed at the start of this week and referred to me. In view of the urgency and the sensitivity of the issues, I decided to list the permission to appeal application for an oral hearing today. I am very grateful to counsel and to the solicitor for the local authority who have prepared for this hearing at very short notice, and also to Mr Parishil Patel QC, and his instructing solicitor, Ms Hobey-Hamsher, who have appeared today on behalf of BF acting pro bono in support of the local authority's application.
The background to the case and the history of the proceedings are set out Ms Scott's very helpful skeleton argument and can be summarised as follows. As set out above, BF is 97 years old. He suffers from a range of health problems, including blindness in both eyes, diabetes and osteoarthritis. For many years he has lived in a two-bedroom bungalow, initially with his wife until she sadly died some years ago, and subsequently with his son, KF. It is plain from the evidence put before Hayden J, which I reviewed, that the relationship between BF and KF is a complex one. As BF explained to Ms Hobey-Hamsher's colleague as recorded in a telephone attendance note put before me this morning, BF promised his wife that he would look after KF after she had died and he has tried to adhere to that promise, notwithstanding the very great difficulties that KF himself has faced arising from long-term problems with alcoholism and drugs addiction.
The local authority started these proceedings in March 2017 because it was concerned that BF was being prevented from receiving necessary care services as a result of the conduct of KF. By that date the local authority had commissioned up to ten different care agencies to provide support and care to BF, all of which had been withdrawn as a result of the behaviour of KF, coupled with the condition of the property. There had been apparently 50 incidents logged on the local authority's computer system involving allegations about KF's behaviour, ranging from what's described in Ms Scott's note as “low physical altercations” to “aggressive and obstructive behaviour”.
In addition, as I have said, the property was in a poor condition. It was dirty, cold and unsafe. There was live electrical wiring visible in the kitchen, rubble on the floor, no working boiler, a flooded kitchen floor, no running water, very little furniture, a broken toilet, a broken cooker, and in addition, the gas pipe had been dismantled by KF. BF was unsafe moving around the house and therefore spent much of his time in his room, which was itself dirty, cluttered and damp.
At the start of these proceedings, on 30 March 2017, Moor J made injunctions under the inherent jurisdiction in respect of KF restraining him from behaving in an aggressive or intimidating manner towards health, social care or housing professionals attending the property, or from impeding or interfering with repair and remedial works to the property.
When the matter returned to court a few weeks later in April 2017, the local authority reported that it had not been able to get any co-operation from KF or for that matter BF, concerning the repairs to the property. The local authority sought a declaration that it had done all that it could be reasonably expected to do to provide BF with care and therefore discharged its duties to him. At that hearing, KF and BF agreed to move out of the property to enable repair works to be carried out and, as a result, Moor J concluded that it was not necessary immediately to grant the application for the declaration sought by the local authority, but he further directed that they would be entitled to the declaration sought if BF and KF failed to comply with their agreement to move out of the property, and he ordered that such a declaration should take effect on 12 May in the event that they did not do so. As things turned out, both KF and BF moved out of the property within that time period. The works were started and completed by the end of July 2017. New wiring was installed, together with a new wet room, a new kitchen. The property was decorated and shortly afterwards BF and KF returned.
However, the local authority continued to encounter difficulties in providing support to BF because of the problems associated with KF's behaviour. After extensive negotiations, another care agency hereafter referred to as “S Agency”, which had provided care to BF in the past, agreed to become involved again, but only on the condition that the local authority met certain safeguards, including the provision of personal safety devices for the care staff to wear. S Agency duly began daily visits to BF in November but, by 6 December 2017, the agency was advising the local authority that, due to the constant intimidating behaviour and aggressive outbursts from KF, coupled with unco-operative behaviour by BF, they were withdrawing their care services. At that stage the local authority social workers themselves stepped in to provide weekly welfare visits. During those visits, there were yet further instances of intimidating behaviour by KF towards the social worker staff. Furthermore, and worryingly, a further renewed deterioration of the property was observed by the local authority team.
By May 2018, it had become clear to the local authority, according to Ms Scott's submissions, that BF did not want the help of the social workers. In any event, the local authority had been unable to secure any other contract with any other care provider who was willing to attend the property. All offers of respite support made to BF had been refused. Accordingly, the local authority issued an application seeking a declaration that, having done all that could be reasonably done to provide BF with care, it should be discharged from all duties owed to him. That application was granted at a hearing by Moor J on 5 June 2018. Thereafter, the arrangement in place was that the local authority would continue to provide a meal to be delivered to BF daily and that, should BF change his mind about wanting to receive services of the local authority, he would contact them and seek their assistance.
Perhaps unsurprisingly given the history, between June and September 2017, the situation deteriorated again. BF had a number of hospital admissions and was reporting to the Care Line emergency line of the local authority that he had not eaten or drunk anything. Matters finally came to a head on 27 September when BF called the Care Line 15 times and the local authority visited the property again. The description of the scene is set out in graphic detail in the witness statement of Ms C, social worker, who reported in summary that she and her colleagues found BF sitting bare-bottomed on the wooden slats of his bed. He had no mattress or sheets. He was surrounded by flies, blood, food, faeces and clutter. He was in pain. He reported he had had nothing to eat or drink for several days. He was hallucinating.
After very great difficulty, the local authority finally persuaded him, after several hours, to...
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...EWHC 623 Fam; An NHS Trust v Dr A [2013] EWHC 2422. This must be compatible with Article 5 ECHR. The observations of Baker LJ in A Local Authority v BF [2018] EWCA Civ 2962 are relevant: “(1) The inherent jurisdiction of the High Court for the protection of vulnerable and incapacity adults......
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...4, [2020] 4 WLR 96, (Hayden J), and see also my summary of the law when 31 refusing permission to appeal in A Local Authority v BF [2018] EWCA Civ 2962, [2019] COPLR 150. On the other hand, Cobb J in Wakefield MDC v DN [2019] EWHC 2306 (Fam), [2019] COPLR 525, reached a contrary conclusion,......
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