London Borough of Hillingdon v PS (First Respondent) CS (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | District Judge Marin: |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] EWCOP 55 |
| Docket Number | CASE NO: 12584003 |
| Court | Court of Protection |
| Date | 04 December 2014 |
[2014] EWCOP 55 (Fam)
IN THE COURT OF PROTECTION
District Judge Marin
CASE NO: 12584003
Mr Lee Parkhill (instructed by Hillingdon Legal Services) for the Applicant
Mr J O'Brien (instructed by Scott-Moncrieff Associates) for the Second Respondent
The attorneys of PS attended in person.
Hearing dates: 2 December 2014
Judgment: 4 December 2014
PS is 93 years old. He has dementia and lives in a care home. CS is his son. His wife died earlier this year.
In 2002, PS made an enduring power of attorney wherein he appointed S, F and A as attorneys. They had been associated with PS for some time and were therefore best placed to deal with his finances.
M is a friend and former employee of PS. CS and the attorneys believed that she had acted inappropriately in her financial and personal dealings with PS. M's employment ended about three years ago although M remained in contact with PS. M had concerns about PS' welfare last year so she informed the local authority.
Meanwhile, PS moved to his present care home and responsibility for his welfare passed to the London Borough of Hillingdon ("Hillingdon"), the Applicant in these proceedings.
After considering M's concerns, they concluded that there were no welfare issues of concern which M accepted. However, an issue remained about M's contact with PS.
When PS lived at home, M visited regularly but contact stopped after his move to the care home in May 2013. PS' treating consultant advised against further contact and this was supported by CS and the attorneys. M did not accept this decision.
As Hillingdon was already involved with PS, they attempted to resolve the contact issue. They convened a best interests meeting in September 2013 which concluded that contact between PS and M was not appropriate.
In January 2014, Hillingdon agreed to a review of the fairness of this decision by an independent social worker who concluded that the process followed was "sound" and complied with the principles of the Mental Capacity Act 2005 although some weaknesses in the process were highlighted.
In June 2014, a further best interests meeting took place to consider further evidence from M. This reached the same conclusion as the earlier meeting.
M then proposed that an independent social work be appointed to consider the whole issue of contact. Hillingdon agreed to the proposal and also to fund it. CS opposed it.
Faced with this impasse about contact, Hillingdon applied to the court in October 2014 once it was clear that no way forward could be agreed. Hillingdon asks the court to determine what is in PS' best interests with regard to contact with M.
Section 50 of the Mental Capacity Act and rules 50 and 51 of the Court of Protection Rules 2007 provide that in some situations, the court's permission is required before an application can be made.
To put this requirement in context, applications relating to a persons property and affairs do not normally require permission. In 2013, approximately 25,000 such applications were made. An application relating to personal welfare matters does, however, require permission and in 2013 around 1,200 such applications were made.
When permission is required, the court will consider whether or not to grant it on the papers.
If there is a welfare issue to decide, the court usually grants permission as the court's decision is needed.
The typical case where permission is refused is where there is no welfare issue that requires determination, the court has no role to play and the application is unnecessary: see for example ( G v E (Deputyship and Litigation Friend) 2010 COPLR Con Vol 470). In such cases, the applicant can ask for the order to be reconsidered at a hearing and this happens from time to time.
What is rare is for there to be an objection to permission being granted when on the face of it there is an issue in dispute that an applicant needs the court to resolve. This is what arises in this case.
Hillingdon asks the court to resolve the issue of contact and seeks permission to make its application. CS and the attorneys oppose permission being granted. In these circumstances, a hearing was listed to deal with this preliminary issue.
Counsel for Hillingdon and for CS have both filed erudite and well argued skeleton arguments in support of their client's positions which I have carefully considered. I shall not reproduce them in this judgment but will instead just highlight some of the points they make.
I shall turn first to CS' objections which the attorneys adopt.
CS argues that the application amounts to an abuse. If M wants contact, M has solicitors who can make an application for her. For its part, Hillingdon has already followed a best interests process to determine contact and has no further role to play.
Section 50(3) of the Mental Capacity Act 2005 sets out factors the court must consider when deciding whether or not to grant permission. It provides that:
"(3) 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."
CS submits that none of the criteria in section 50(3) are made out.
Hillingdon has no connection with PS as it provides no care services to him, it does not manage his money or income, it has no historical connection to PS and has already determined that there are no safeguarding issues. It is only involved as PS lives in its area.
The only reason for the application is because Hillingdon feels that restrictions on contact should be imposed by the court. CS says that this is using the court as an insurance policy to reinforce its own decision that there should be no contact and if Hillingdon really felt that the court should be involved, it should have made its application in September 2013 when the issue first fell for determination.
There is also no benefit to PS from this application because before September 2013, contact was stopped on the advice of PS' doctor and in September 2013, the decision was made on a more formal basis to stop contact. Future contact decisions can be made without the court's intervention by CS, the attorneys and those caring for PS on a daily basis. Counsel for CS made the point that decisions about incapacitated adults are made every day of the week in care homes and "where special privacy arrangements are central to residents' needs". None of this requires a court decision.
The final argument is that the whole court process in the context of this particular dispute is disproportionate and costly such that it is not in PS' best interests to allow this litigation to proceed especially as M has made no application and the effect of it could seriously deplete PS' finances and impact the staff at his residential home.
Hillingdon disagrees with the position taken by CS. The Department of Health (March 2000) guidance " No secrets, Guidance on developing multi-agency policies and procedures to protect vulnerable adults from abuse" obliged Hillingdon to become involved when safeguarding concerns were raised and this led to its continuing involvement regarding contact...
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