Re JB (Costs) v A Local Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keehan |
| Judgment Date | 02 October 2020 |
| Neutral Citation | [2020] EWCOP 49 |
| Docket Number | Case No: 13512882 |
| Date | 02 October 2020 |
| Court | Court of Protection |
[2020] EWCOP 49
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Keehan
Case No: 13512882
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Ms F Morris QC (instructed by In House Legal Team) for the Applicant
Ms K Tayler (instructed by Irwin Mitchell Solicitors) for the 1st Respondent
Mr J O'Brien (instructed by MJC Law) for the 3rd Respondent
Hearing dates: on the papers
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Hon
Introduction
In these Court of Protection proceedings I am concerned with one young man, JB, who has a diagnosis of a learning disability and ADHD. He was accommodated at a specialist residential unit, AH, in August 2017.
These proceedings were commenced on 14 th November 2019. JB's mother, SB, was a party to the proceedings and JB was represented by his Litigation Friend, the Official Solicitor. The application by the local authority invited the court to make the following declarations and orders:
i) a declaration under s.15 of the Mental Capacity Act 2005 (‘the 2005 Act’) that JB lacks capacity to litigate these proceedings and to make decision and his residence and care;
ii) an order that JB should reside at AH until July 2020; and
iii) a deprivation of liberty order.
The court made various directions and orders and listed the matter for a further directions hearing on 22 nd April 2020. In particular the local authority was directed to file and serve a statement setting out the local authority's proposals for the future residence and care needs of JB before July 2020 and after July 2020.
On 31 st January 2020, AH gave notice to the local authority that JB would need to leave the placement by 5 th June 2020.
In a witness statement dated 28 th February 2020, the social worker set out the position of the local authority in respect of JB's future placement after he had left AH. It was noted that a joint approach by social care and health providers would be required to meet JB's behavioural needs.
Just prior to the hearing on 22 nd April 2020, the local authority filed and served a second statement from the social worker setting out that:
i) no providers of residential placements had been identified, either locally or nationally, who could meet JB's needs or were willing to offer him a placement; and
ii) whilst the local Clinical Commissioning Croup (CCG) had accepted a referral in respect of JB it had postponed assessments of him because of the pandemic.
At the hearing on 22 nd April 2020, in addition to giving further case management directions, I declared that JB lacked capacity to conduct this litigation and to make decisions about his residence, care and support, contact with others and his use of the internet and social media. I made interim orders that the placement at AH continued to be in JB's best interests and I continued the deprivation of liberty order.
At a further hearing on 11 th May 2020, I was told that AH had slightly revised its position and that it required JB to leave the placement by late July 2020 and it would not contemplate any further extension. The local authority indicated that it would seek an injunction against SG, the parent company which owned and operated AH, to prevent JB being required to leave the residential unit until October 2020. SG opposed the making of an injunction. I made SG a party to these proceedings, gave directions for the parties to file and serve skeleton arguments on the issue of whether the court had the power and, if so, should make the injunctive order against SG as sought by the local authority. I listed the mater for a contested hearing on 9 th July 2020.
On 18 th May 2020, further to a direction I had made on 11 th May 2020, the local authority filed and served a statement by the authority's director of adult services. In the statement the director asserted as follows:
“The complexities of JB's needs and therefore the proposed package is way beyond the remit that social care would normally operate in. It identifies that given JB's complex needs and presentation; these would be more fitting of a specialist placement, which would usually be accessed directly via the CCG or NHSE with the NHS having the clinical expertise to commission and monitor efficacy of specialist and therapeutic intervention and support. This is clearly beyond the role, responsibility and practiced expertise of a local authority”
“The local authority will expect that the responsible CCG to take the lead in commissioning the relevant care package. For JB, as a care leaver, we believe [CCG A] will remain the responsible commissioners for JB. To date, however the CCG are unwilling to accept responsibility and lead on finding and commissioning a placement for JB, with the local authority supporting as required.”
It became clear that there was a dispute between CCG A, the CCG for the area where JB had lived before going to live at AH, and CCG B, the CCG for the area where JB lived at AH, as to which of them was responsible for assessing and providing services to JB. At the hearing on 21 st May 2020 both CCGs were joined as parties to these proceedings.
SG, SB and the Official Solicitor all filed and served skeleton arguments in response to the local authority's skeleton argument in support of its application for an injunction against SG. All three submitted that the court did not have jurisdiction to make the injunction sought by the local authority. In response, on 19 th June 2020, the local authority gave notice that it was going to seek permission to withdraw the application for injunction.
At the hearing on 9 th July 2020, I gave the local authority permission to withdraw its application for an injunction and, by consent, I ordered the local authority to pay SG's costs.
CCG A had by this time agreed to take the lead in the commissioning and case management of a future placement.
Subsequently SB and the Official Solicitor applied for costs against the local authority in respect of the costs occasioned by:
i) the local authority's application for an injunction against SG; and
ii) the local authority's failure to make an application for CCG A and CCG B to be made parties to these proceedings earlier than 21 st May 2020.
I gave directions for the filing of written submissions by SB, the Official Solicitor and the local authority on the issue of this application for costs. The local authority opposed both SB's and the Official Solicitor's application for costs.
The Law
The Court of Protection Rules provide as follows:
“Personal welfare – the general rule
19.3. Where the proceedings concern P's personal welfare the general rule is that there will be no order as to the costs of the proceedings, or of that part of the proceedings that concerns P's personal welfare.
Departing from the general rule
19.5.—
(1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including—
(a) the conduct of the parties;
(b) whether a party...
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