North Yorkshire County Council and Another v MAG (by the Official Solicitor, as his litigation friend) and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Cobb |
| Judgment Date | 18 January 2016 |
| Neutral Citation | [2016] EWCOP 5 |
| Date | 18 January 2016 |
| Court | Court of Protection |
| Docket Number | Case No: 12044280 |
[2016] EWCOP 5 (Fam)
COURT OF PROTECTION
On appeal from District Judge Glentworth
Court of Protection sitting at Leeds Combined Court Centre
The Law Courts
Quayside
Newcastle Upon Tyne
Mr Justice Cobb
Case No: 12044280
Nicholas Stonor QC, Jacqui Thomas (instructed by Local Authority solicitor) for the First Appellant
Fenella Morris QC, Duncan Maxwell-Stewart (instructed by the CCG) for the Second Appellant
Aswini Weereratne QC, Neil Allen (instructed by Switalskis on behalf of the Official Solicitor) for MAG
GC was neither present nor represented
Hearing dates: 1 December 2015
| 1 | Introduction | 1–3 |
| 2 | Background | 4–8 |
| 3 | Judgment of DJ Glentworth | 9–14 |
| 4 | Grounds of Appeal and argument of NYCC | 15–17 |
| 5 | Grounds of Appeal and argument of ACCG | 18–19 |
| 6 | Response of the Official Solicitor | 20–24 |
| 7 | Discussion | 22–53 |
| 8 | The Official Solicitor's case on Article 3 ECHR | 54–57 |
| 9 | Duration of the proceedings and the cost of the litigation | 58–60 |
| 10 | Refusal of interim order pending appeal | 61 |
| 11 | Order | 62–64 |
Introduction
There are before the court two linked appeals from an order of District Judge Glentworth sitting in the Court of Protection in Leeds on 13 July 2015. The appeals are brought against the refusal of an application brought by North Yorkshire County Council ("NYCC") for authorisation for the deprivation of liberty of a man ("MAG") at the home where he has lived since 2006. The judgment supporting the order under appeal is reported as North Yorkshire County Council v MAG, GC and A Clinical Commissioning Group [2015] EWCOP 64.
On 31 July 2015 NYCC issued an application for permission to appeal accompanied by a Notice of Appeal; a similar application and Notice of Appeal was soon thereafter issued by A Clinical Commissioning Group ("ACCG") (3 August 2015). The two public bodies make common cause, and have run complementary cases. The applications for permission to appeal, and the proposed appeals, are opposed by the Official Solicitor acting on MAG's behalf. GC, mother of the subject of these proceedings, has made no formal statement in relation to the appeals, and was not present at the hearing. The hearing before me (listed pursuant to rule 172(6) COP Rules 2007) on 1 December was set up by HHJ Moir, as a combined hearing of the applications for permission to appeal, with appeals to follow. I indicated at the outset of the hearing that I would hear full argument from the parties on the applications and appeals. I am indebted to counsel for the clear and effective presentation of their arguments. I granted permission to the Official Solicitor to rely on matters set out in the full written argument of Ms Weereratne QC notwithstanding that there had not been full compliance with the rules ( rules 176(3)/(4) and 179(5) COP Rules 2007).
At the end of the hearing, I reserved judgment.
Background
This appeal concerns MAG, who was born on 2 November 1980; he is therefore now 35 years old. As a result of perinatal trauma, he suffers from autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. He has a complex presentation, which includes behaviour which poses a risk to himself and others. Proceedings in the Court of Protection were issued by NYCC on 7 September 2011, by which (as DJ Glentworth's judgment records), NYCC sought declarations that MAG lacks capacity to:
i) decide where he should reside;
ii) enter into a tenancy agreement;
iii) make decisions about his care needs;
and that it is in his best interests:
1. to be deprived of his liberty, and reside in his current placement;
2. for the Corporate Director of Health and Adult services (at NYCC) to enter into a tenancy agreement on his behalf in relation to "the Tenancy" (his current placement).
There has been, and is currently, no dispute in this case that MAG lacks capacity to conduct these proceedings and make the decisions in question, and final declarations to that effect have already been made (22 January 2013). The key issue before the court which led to the order under appeal concerned MAG's deprivation of liberty which was and is inextricably linked with his place of residence and care package (see [7] below).
MAG has lived in his current home since 20006. NYCC is responsible for meeting MAG's accommodation needs, which are in part (25%) funded by them, but largely (75%) funded by ACCG. The property is a one-bedroom ground floor flat, which is too small to accommodate the use of a wheelchair; there is no scope for sleeping night staff. MAG has a support team of 11 workers and up to 4 workers are involved in his care each day. He is able to access the community on a daily basis but there is no outside space which he can use at the property; the property is in a town centre, and MAG derives pleasure from sitting at his window watching the world go by. DJ Glentworth summarised (at §7) MAG's use of his home as follows:
"MAG cannot stand independently and when he is at home in his ground-floor flat he mobilises by crawling and pulling himself along the floor and up on to chairs and his bed. He uses a wheelchair outdoors and is secured when in it by the use of a Crelling (Houdini) harness which serves as a protection for him and others. He is unable to use his wheelchair indoors because there is insufficient room to enable him to manoeuvre it. He has 1:1 support at all times and 2:1 support in the community save for those times when an experienced and willing member of his care team takes him out in his wheelchair. Since December 2011 he has received 35 hours of 2:1 support each week (increased from 28 hours). At all other times he remains in his flat."
Adding at §20:
"The corridor leading from the bedroom to the lounge and kitchen is too narrow to move a wheelchair into those rooms. He moves around the flat on his bottom and using his hands and knees. This has resulted in him sustaining painful bursitis in both knees and he has calluses to his knees and ankles. Ms Hutchinson [Registered Nurse Learning Disability] advised that MAG's current property does not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm".
And at §30:
"I note that when MAG was at the residential care home whilst his property was refurbished he mobilised within the care home using his wheelchair. I am not satisfied that, if he had the option of using his wheelchair within his home, he would choose not to use it. In his present accommodation he is deprived even of that option".
Within the care regime in place, MAG is deprived of his liberty in his home in the following material respects:
i) the front door is locked and MAG has no means to open it;
ii) MAG cannot go outside on his own because of the restrictions imposed to keep him safe. There is no safe, suitable outside space at his current property;
iii) he has 1:1 staffing at all times because of the risk he poses to himself;
iv) he has 2:1 support when accessing the community;
v) a 'Crelling' harness and lap strap are used to keep him in his wheelchair when he is out in the community in it.
I am in no doubt that these restrictions represent a deprivation of liberty as it is understood following the decision of P v Cheshire West and Chester Council and P and Q v Surrey County Council (" Cheshire West") [2014] UKSC 19, [2014] 1 AC 896. The court first authorised MAG's deprivation of liberty in his home on an interim basis on 23 November 2011; these interim orders continued in place until 13 July 2015.
It is common ground that since early 2013 NYCC has been searching for alternative accommodation for MAG; a dispute arises in this case between the public authorities and the Official Solicitor as to the vigour and timeliness with which the authority has been engaging in that pursuit. Within the hearing before DJ Glentworth, it was accepted that it would be in MAG's best interests to move to a less restrictive property which meets the following criteria: the property should:
i) be on the ground floor with one or two bedrooms;
ii) have outside space either communal or enclosed;
iii) have passages wide enough to enable use of the wheelchair indoors;
iv) have windows to watch what is happening outside;
v) be close to amenities in the community.
In the period since the delivery of the judgment by DJ Glentworth such a property has in fact been identified; MAG was scheduled to move in to this property following the hearing of these appeals, on about 15 December 2015. It was agreed at the Bar, and I accepted, that the outcome of this appeal did not (as a result of locating alternative accommodation) become academic, as there remained an issue about the lawfulness of the restriction of MAG's liberty in the period between 13 July and the date of his move.
Judgment of District Judge Glentworth
The hearing before DJ Glentworth took place on 6 March 2015; the Judge had visited MAG in his home on 20 February 2015. At the hearing, oral evidence was given by NYCC's social worker (Ms FC), NYCC's specialist in autism (Ms AT), the service manager from the social care providers (Ms MB), and Christine Hutchinson, Registered Nurse Learning Disability. The court had a report from Dr. Lisa Rippon, Consultant Developmental Psychiatrist, prepared on the joint instructions of the parties; Dr. Rippon was not called to give evidence. Submissions followed after the hearing on 6 March and judgment was reserved, at least in part to await the outcome of the appeal in Re MN (Adult) [2015] EWCA Civ 411. The Court of...
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