Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWCOP 13 |
| Docket Number | Case No: 12488518 |
| Court | Court of Protection |
| Date | 13 March 2015 |
[2015] EWCOP 13
COURT OF PROTECTION
Leeds Civil Hearing Centre
Coverdale House, Leeds, LS1 2BH
Mr Justice Mostyn
Case No: 12488518
Mr Samuel Skinner (instructed by Rochdale MBC Legal Services) for the Applicant
Mr Adam Fullwood (instructed by Peter Edwards Law LLP) for the First Respondent
The Second and Third Respondents were neither present nor represented
Hearing date: 2 March 2015
On 18 November 2014 I handed down my principal judgment and it was immediately placed on Bailii: Rochdale Metropolitan Borough Council v KW & Ors [2014] EWCOP 451.
In paras 25 and 26 I held, applying the law to the facts as I found them, that:
"It is my primary factual finding that in Katherine's case the second part of the acid test is not satisfied. She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom.
I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged."
Earlier, at para 22 I had stated:
"Katherine's ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves."
This was not a finding of fact on which my decision depended. Far from it. It was a hypothetical scenario used by me to stress-test the principal argument that Katherine was being detained by the State. The factual basis on which I made my finding was set out in para 6 as follows:
"Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7. They attend to
her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back."
It was from first to last a judgment on the merits. I will explain the significance of this later in this judgment. It was also, I like to think, an important decision and it was for this reason that I expressed the view that the matter should be reconsidered by the Supreme Court (see para 27). However, the applicant council did not give the necessary consent for a leap-frog straight to the Supreme Court and I therefore granted KW permission to appeal to the Court of Appeal (see paras 31 and 32).
My order dated 18 November 2014 contained a recital as follows:
"The applicant seeks a determination from the Court as to whether its involvement in KW's care plan in her home is sufficient to engage Article 5 of the European Convention on Human Rights in her favour. The first respondent asserts that it does."
Paras 5 and 6 of my order provided that:
"5. It is in KW's best interests to reside at (address redacted) and there to receive a package of care in accordance with her assessed needs.
6. That package of care does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights."
Para 11 of my order provided that:
"Permission is granted to the first respondent to appeal to the Court of Appeal against para 6 of this order."
On 17 December 2014 I handed down my judgment in The London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 532. There I sought further to explicate my reasoning particularly by reference to the decision of the European Court of Human Rights in Price v. The United Kingdom [2001] ECHR 458, a decision not referred to by the Supreme Court in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19, [2014] 1 AC 896.
The appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against my decision by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4. Its order provided as follows:
"UPON reading the appeal bundle filed with the court.
AND UPON the Respondent confirming that it does not intend to oppose the appeal
IT IS ORDERED that:
1. This appeal is allowed.
2. For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW's liberty, such deprivation of KW's liberty is hereby authorised.
3. If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes.
4. If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made.
5. In any event. Rochdale Council must make an application to the Court no less than one month before the expiry the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.
6. Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.
7. "The review period" shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.
8. Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as "KW" until further order pursuant to section 12 of the Administration of Justice Act 1960.
9. There shall no order for costs between the parties.
10. There shall be a detailed assessment of KW's public funding costs."
Attached to the order was a piece of narrative, prepared by counsel for the appellant, which provided as follows:
"Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.
The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors [2014] UKSC 19; [2014] AC 986 ("Cheshire West") to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own."
On 3 February 2015 I directed that this hearing should take place for:
"Directions as to the scope of (and reasons for) the additional obligations imposed on this court by virtue of the consent order made by the Court of Appeal on 30 January 2015."
Earlier on 2 February 2015 I had directed that this case should be reserved to me.
CPR 52.11...
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