Re AC and GC (Capacity: Hoarding: Best Interests)
| Jurisdiction | England & Wales |
| Judge | Clayton |
| Judgment Date | 15 August 2022 |
| Neutral Citation | [2022] EWCOP 39 |
| Docket Number | Case No: 13361896 & 1385996T |
| Court | Court of Protection |
[2022] EWCOP 39
HER HONOUR. JUDGE Clayton
Case No: 13361896 & 1385996T
IN THE COURT OF PROTECTION
The County Court
Birmingham
Alexander Campbell (instructed by Legal Services) for the Local Authority
Neil Allen (instructed by Moore and Tibbits Solicitors) for the Official Solicitor for AC
Mike O'Brien QC (instructed by Irwin Mitchell Solicitors) for GC Public Guardian (excused from attending)
Hearing dates: 19–22 July 2022
The Applications
These proceedings concern AC who was born on 24 th of July 1929 and is 92 years old and her son GC. The proceedings in respect of AC were issued in 2020 as an application for an order that she be moved from her home, where she was living with GC, to a respite placement to allow for issues of hoarding and cleanliness of the property to be addressed and the property made safe.
On 7 December 2021 the local authority issued section 16 proceedings concerning GC for an order that GC leave his home property so that it could be cleaned and, by an order on 8 December 2021, the court consolidated that case with AC's case. The court also directed that GC's mental capacity in particular domains be assessed by Professor Paul Salkovskis.
On 18 March 2022 the court reconstituted AC's proceedings as section 21A proceedings and the court declared it was in AC's best interests to move from hospital to AP care home and AC moved to AP on 21 March 2022. The court made declarations regarding AC within these proceedings under section 15 of the Mental Capacity Act 2005 that AC lacks the mental capacity to:
a. Conduct these proceedings;
b. Make decisions as to her residence; and
c. Make decisions as to her care and support.
At the last hearing on 12 May 2022, the court listed a contested hearing on 19 to 22 July 2022 to determine:
(I) whether GC has capacity to:
(1) Manage his own property and affairs;
(2) Manage AC's property and affairs;
(3) Make decisions regarding his items and belongings;
(4) Make decisions regarding AC's items and belongings.
(II) whether AC should return home for a trial period receiving a package of care there.
(III) whether to appoint a deputy for AC's property and affairs.
At the start of this hearing the court was informed that all parties agreed that the court should make a declaration under section 15 of the Mental Capacity Act that GC lacks capacity to make decisions regarding his own items and belongings and to make decisions regarding AC's items and belongings and that no declaration is required with regard to managing his own property and affairs, nor with regard to managing AC's property and affairs, since there is no need for any form of deputyship in respect of his own financial affairs, he has disclaimed the lasting power of attorney made in his favour in respect of AC and agrees to the court appointing a deputy in respect of her. This was with particular reference to A Local Authority v JB [2021] UKSC 52 which emphasised the importance of (1) identifying the precise matter upon which the person's decision is required; and (2) identifying the information relevant to the decision. All agreed that a deputy should be appointed for AC's property and affairs and, specifically, it should be Debbie Anderson. She has confirmed a willingness to be appointed. I approve the agreement, the rationale behind it and agree to make the declaration as set out by the parties.
The only issue to be resolved, therefore, is whether AC should return home for a trial period, receiving a package of care there.
The parties were in full agreement that oral evidence was only required from Professor Salkovskis and the case could be decided upon his evidence, the evidence contained within the trial bundle and the written and oral submissions of each of the parties. They were able to do this in view of considerable work undertaken by those representing the parties in advance of the hearing, which enabled issues to be narrowed.
The Parties and their Positions
The applicant is the local authority, Coventry City Council, represented by Alexander Campbell of counsel, instructed by Mr Sebastian Brun of Coventry City Council Legal Services. They do not support a trial at home. They suggest proceedings should be concluded with AC remaining at AP. If there is to be a trial at home, they agree it should be for 10 weeks and subject to the conditions set out in the position statement of the Official Solicitor at paragraph 17. The same should be considered as read into this judgment and is appended to this judgment as Appendix 1. They would be willing to fund AP for 5 weeks and suggest AC should fund a further 5 weeks so that a place is kept for her for a total of 10 weeks. They support the appointment of Debbie Anderson as deputy for property and affairs if a trial at home is directed by the court. They agree the appointment of an Independent Social Worker would be appropriate to assess the trial at home, if ordered.
The first respondent is AC. She is represented by her litigation friend, the Official Solicitor, and represented at this hearing by Neil Allen of counsel. The solicitor who instructs him is Ms Lala. The OS sets out the proposed steps necessary to support a return home at paragraph 17 of the position statement prepared by Neil Allen and suggests if they are in place, on a fine balance, it would be in her interests to return home, initially by way of a trial period. He suggests the local authority should fund the cost of holding AP's placement open since AC will be funding her care package at home. He supports the appointment of Debbie Anderson.
The second respondent, GC, is the son of AC, and represented by Mike O'Brien QC, instructed by Ms Kirsty MacMillan of Irwin Mitchell LLP. GC's position is the same as that of AC.
The third respondent, the office of Public Guardian, was excused attendance at this hearing on the basis that decisions made here would likely resolve their application to discharge GC as lasting power of attorney for property and affairs of AC.
The Background
The background is set out in the case summary agreed by all parties, dated 18 July 2022, and should be taken as read into this judgment. It is appended to this judgment as Appendix 2. I have case managed this case for the last two years and so am familiar with it and the way in which matters have developed.
The Legal Principles
A statement of legal principles for this hearing has been agreed, most helpfully, by all parties and is set out in a 15-page document, which should be taken as read into this judgment and is appended as Appendix 3. The parties identified, and the court agrees, that by reference to A Local Authority v JB [2021] UKSC 52, one of the relevant matters requiring a decision relates to their items and belongings. Final declarations were made at this hearing that AC lacks capacity to revoke her lasting powers of attorney, and to make decisions about managing her property and affairs and her items and belongings. In relation to GC, final declarations were made that he has capacity to conduct these proceedings but lacks capacity to make decisions about managing his items and belongings (as opposed to his property and affairs more generally) and those of AC.
The parties and the court agree that the information relevant to making decisions in respect of one's items and belongings is as set out in the report of Professor Salkovskis, namely:
(1) Volume of belongings and impact on use of rooms: the relative volume of belongings in relation to the degree to which they impair the usual function of the important rooms in the property for you (and other residents in the property) (e.g. whether the bedroom is available for sleeping, the kitchen for the preparation of food etc). Rooms used for storage (box rooms) would not be relevant, although may be relevant to issues of (3) and (4).
(2) Safe access and use: the extent to which you (and other residents in the property) are able or not to safely access and use the living areas.
(3) Creation of hazards: the extent to which the accumulated belongings create actual or potential hazards in terms of the health and safety of those resident in the property. This would include the impact of the accumulated belongings on the functioning, maintenance and safety of utilities (heating, lighting, water, washing facilities for both residents and their clothing). In terms of direct hazards this would include key areas of hygiene (toilets, food storage and preparation), the potential for or actual vermin infestation and risk of fire to the extent that the accumulated possessions would provide fuel for an outbreak of fire, and that escape and rescue routes were inaccessible or hazardous through accumulated clutter.
(4) Safety of building: the extent to which accumulated clutter and inaccessibility could compromise the structural integrity and therefore safety of the building.
(5) Removal/disposal of hazardous levels of belongings: that safe and effective removal and/or disposal of hazardous levels of accumulated possessions is possible and desirable on the basis of a “normal” evaluation of...
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