Newcastle City Council v TP (by her litigation friend The Official Solicitor) (1st Respondent) FW (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Moir |
| Judgment Date | 22 November 2016 |
| Docket Number | Case No. 12800293 |
| Court | Court of Protection |
| Date | 22 November 2016 |
[2016] EWCOP B3
IN THE COURT OF PROTECTION
SITTING AT NEWCASTLE-UPON-TYNE
The Law Courts
The Quayside Newcastle-Upon-Tyne
NE1 3LA
Her Honour Judge Moir
Sitting as a Nominated Judge of the Court of Protection
Case No. 12800293
In the matter of:
and
Counsel for the Applicant Local Authority: Mr McCormack
Counsel for the Official Solicitor: Ms Gardner
Solicitor for the First Respondent Cartwright King Solicitors
The Second Respondent did not attend and was not represented
JUDGMENT APPROVED BY THE COURT
I heard evidence yesterday in order to determine the factual background against which decisions as to the best interests of TP should be made. The local authority asks me to make findings in accordance with the schedule of findings which it has provided to the court. It is the local authority that brings this case and therefore the burden is upon it to prove the relevant findings sought to the required standard of proof, namely the balance of probability.
TP is represented in these proceedings by the Official Solicitor who remains neutral in respect of the findings sought by the applicant. Quite rightly, the Official Solicitor adopts the position that it is for the applicant to satisfy the court that the allegations contained within the schedule of findings are made out.
The second respondent, FW, has not attended court. He came to court upon one occasion during the course of these proceedings but has chosen not to attend this hearing. I am satisfied that he is well aware of the fact that the case is listed for hearing this week and I have been provided by him through the post with a number of copies of letters sent by him to Andrea Prescott, the solicitor instructed by the official solicitor. The letters were received by the court on 18 th November 2016 although the letters themselves are dated 31 st October, 2 nd November, and 11 th November. It seems that the second respondent is of the view there is a conspiracy between establishment figures and that the court is corrupt, and therefore he has decided not to attend at this hearing. Thus, it seems there is no good reason why the case should not proceed in his absence. He does not intend to be present whenever the case is heard.
I heard oral evidence from Laura McDonald, who was TP's previous social worker and from TP's two sisters, SB and MR, and from Dr Annette Hughes. SB and MR reside in the United States of America and I heard their evidence by telephone. FW has provided responses in reply to the application and to the witness statement of Laura McDonald. I have read those responses as well as the statements contained within the bundle of Laura McDonald, SB, MR, and the report of Dr Hughes dealing with her involvement with FW and TP prior to TP's removal into the care home.
The history and background set out by Laura McDonald is prepared from the records. She accessed the case observations, case notes, and safeguarding minutes to enable her to set out in her statement information about matters prior to her direct involvement with TP. She told me that she has looked at all the computerised records including the concerns noted from the police and ambulance men, from health and housing, and generally put together all the information available to the local authority in respect of TP.
Laura McDonald was allocated to the case on 22 nd December 2014 and therefore information contained in her statement as to matters prior to that date is taken from the records. Thus, much of her statement is a narrative description of relevant entries made by colleagues and others. This part of the evidence is therefore hearsay and I consider it having regard to section 4 of the Civil Evidence Act 1995. Mr McCormack, in taking me through the necessary evidence, has drawn my attention to what is contained in the relevant parts of the responses filed by FW. In the same way as the evidence of the applicant, I attach the necessary and relevant weight to the responses of FW bearing in mind that he is not here and therefore has not been available to be cross-examined or assessed by the court.
From the information provided by Laura McDonald, a description of TP's upbringing and background can be ascertained. TP was born on 5 th January 1955 and thus will be 62 in a few weeks' time. She is one of three sisters, SB and MR being her older sisters. She was born with cerebral palsy and her parents, it is said, were extremely protective of her throughout her childhood and indeed her adulthood. She lived with her parents until her mother died in 2003 and then in 2004 her father went into residential care and he died in 2005. TP lived a very sheltered life and her contacts outside her home at that time were limited. After the death of her parents, TP continued to live in the same large Victorian house in Gosforth where she had resided with her parents until that home was sold and TP was supported to move into a rented flat in Gosforth in the area with which she was familiar from childhood.
I heard from both SB and MR about the contact they had with their sister. Although living in New Jersey, they told me they were in regular contact by telephone. SB told me that she would speak to TP almost every day by telephone. She would visit once a year, sometimes twice a year. She wrote to TP and SB said that she had a close circle of friends with whom she was able to make contact and check up on TP's wellbeing. There were friends of her sister MR who would take an interest in TP and she told me there was a nice lady upstairs and there was MR who came to clean and would spend an hour or so talking to TP. TP also went to the USA and stayed with her sisters on numerous occasions. Both sisters described a warm sisterly friendship. MR talked about taking TP out with her friends. She said, "TP was capable of being close to us. We took an interest in her."
MR then went on to describe it as a normal long distance relationship between sisters. SB said that:
"The relationship was as good as we could have bearing in mind the distance. We would tell her about what we were doing. We were talking about the family until the relationship between TP and FW."
Then according to SB, TP became more distant and would not engage with either herself or MR.
TP's sisters are described as playing a supportive and active role in sharing information appropriately with Newcastle City Council adult services and supporting TP in making informed key decisions about her life around accommodation, finances, and accepting formal care services.
TP moved into her flat in 2009. It is described as a rented flat owned by Riverside Housing who was part of the support services to maintain TP's safety and welfare. TP has a weakness in her right arm and leg arising from her cerebral palsy. She is unable to use her right hand. She has some unsteadiness on her feet but walks unaided. TP has epilepsy which is managed by regular medication. Sadly, she lost the sight in her right eye when she was about 19. TP has had a knee replacement and has osteoporosis. TP has learning difficulties. She previously accepted support from Age Concern and had weekly counselling sessions with them to help with the depression from which she sometimes suffered and the emotional reactions she had to events in her life. TP also had or was assessed as needing and had a service for four hours once a week whereby a consistent care worker would take her into the community which it is recorded TP enjoyed.
Laura McDonald outlined within her statement the services and support provided to TP until November 2010. At the time that social work support ended, it is recorded that TP had stable formal care arrangements, supportive neighbours and friends, a regular routine and she had a telephone landline, mobile, and telecare equipment linked to the community care alarm service enabling her to seek support in the event of an emergency. TP also had a routine and structure that promoted her independence in managing her finances.
In 2011, TP began to decline support from adult social care to access her finances or engage in community activities. The Community Care Alarm Service that was linked to a mobile community warden was cancelled on 7 th May 2011. It was collected from her home as TP stated she no longer needed it. On 9 th April 2011, the manager of the company providing TP's care rang Newcastle City Council's adult services contact point raising concerns that TP wanted to cancel her care. A contact officer spoke with TP by telephone. TP stated that she felt she was managing very well. The contact officer formally ended care services.
The only service TP continued to accept from Newcastle City Council's adult services was a weekly call to assist with domestic tasks and in February 2012, TP reduced her weekly domestic service to a fortnightly call. It is documented that there was then the changes which have been described within those paragraphs. SB described what happened when she visited in November 2011. She told me that usually when she visited she and TP would go out together a lot, but on this occasion TP was going out all the time to visit FW and I quote from my note:
"She said she had to phone FW to tell him she wasn't coming. She seemed nervous about telling him, 'I'm not coming'. [SB then told me] I was there over a week. She went every day for lunch and dinner and she was not with me and I knew things were not right."
She told me about visiting as she...
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