TA (appellant) AA (by His Litigation Friend, the Official Solicitor) (1st Respondent) Knowsley Metropolitan Borough Council (2nd Respondent)

JurisdictionEngland & Wales
JudgeLady Justice Gloster,Lady Justice Black,Lord Justice Moses
Judgment Date19 December 2013
Neutral Citation[2013] EWCA Civ 1661
Date19 December 2013
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2012/1235

[2013] EWCA Civ 1661




COP 11913708

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Moses

Lady Justice Black


Lady Justice Gloster

Case No: B4/2012/1235

AA (By His Litigation Friend, the Official Solicitor)
1st Respondent
Knowsley Metropolitan Borough Council
2nd Respondent

Mr Paul Bowen QC and Mr Simon Burrows (instructed by Switalskis Solicitors LLP) for the Appellant

Mr Richard Gordon QC and Mr Adam Fullwood (instructed by Peter Edwards Law Solicitors) for the 1st Respondent

Ms Jane Cross and Mr Jonathan Butler (instructed by Knowsley Metropolitan Borough Council) for the 2nd Respondent

Hearing dates: Thursday 3rd October 2013

Friday 4th October 2013

Approved Judgment

Lady Justice Gloster



This is an application for permission to appeal against the decision of Mr. Justice Peter Jackson dated 2 May 2012, whereby he dismissed the Appellant's application under section 21A Mental Capacity Act 2005 ("the MCA") challenging the lawfulness of a Standard Authorisation dated 23 November 2011 made under Schedule A1 of the MCA authorizing the deprivation of his son's, the first respondent's ("AA"), liberty.


On 27 July 2012 McFarlane LJ, as the single judge dealing with the application for permission to appeal on the papers, ordered that the application for permission to appeal should be adjourned to an on notice hearing with the appeal to follow, if permission to appeal were granted. That was because of his concerns about whether this court has jurisdiction to entertain this appeal. In his reasons for taking that course, McFarlane LJ expressed those concerns as follows:

"In addition, this is an appeal against the refusal of Jackson J to grant permission to appeal. If these proceedings are governed by Access to Justice Act 1999, section 54(4) and CPR PD 52 para 4.8 (and see White Book notes para 52.3.8) then there is no appeal to the Court of Appeal from a refusal of permission by the lower appellate court. These are proceedings in the Court of Protection and COP Rules r 181(1) provides for an appeal from a decision of a judge nominated by MCA, s 46(2) [which includes Jackson J sitting in the COP] to lie to the Court of Appeal. It is a moot point whether, in contrast to ordinary civil proceedings, there is scope for appealing a refusal of permission to appeal in COP cases. This point also justifies consideration by the full court, but means that permission to appeal will not be granted at this stage."

Facts relevant for the purposes of the jurisdictional issue


The following summary of the background facts was common ground.


The Appellant is AA's father and "Relevant Person's Representative" ("RPR") appointed under Part 10 of Schedule A1 to the MCA. AA is a vulnerable young man with a long-standing condition that requires careful management and control. In this appeal AA is represented by his litigation friend, the Official Solicitor.


The second respondent, Knowsley Metropolitan Borough Council ("KBC"), is the relevant social services authority. It regularly assesses AA's needs and reviews his care plan.


AA was born on 14 May 1973. He began abusing alcohol from an early age and received his first conviction for being drunk and disorderly at the age of 14. On 15 March 2006 AA was assessed by a neurologist who suggested that he had sustained brain damage as a result of his long-term alcohol abuse. Reference was also made to the poor management of his epilepsy.


In 2008, and following further arrests and convictions, AA was made the subject of a Multi Agency Public Protection Arrangement ("MAPPA"). On 6 August 2008 he was detained in hospital under section 2 of the Mental Health Act 1983 ("the 1983 Act"). Assessments revealed that AA was unable to prepare his own meals and would be at risk living on his own. It was suggested that he had developed Korsakoff's Syndrome and that he required 24-hour supervision to meet his needs and keep him safe.


On 11 December 2008 AA was placed at Kemp Lodge, Birkenhead (Brain Injury Residential Unit) as a condition of leave and then under a Community Treatment Order ("CTO") Following discharge it was hoped that the CTO would provide the level of structure and support required to manage his behaviour and alcohol abuse.


On 23 March 2009 he was discharged from the CTO due to his continued abuse of alcohol. In April 2009 he left Kemp Lodge, as the relevant authorities considered that he was no longer able to benefit from the rehabilitation services offered there.


AA moved into privately rented accommodation with the assistance of his father but was reported to be wandering the streets, often under the influence of alcohol. He was regularly placing himself at risk of harm by others and was seriously assaulted on at least one occasion. Further professional assessments of AA concluded that he required 24-hour care to meet his needs and keep him safe.


On 11 May 2010 AA's social worker (Ms. Agiannitopoulos) recorded her view that his father had good but unrealistic intentions for his son. On 12 May 2010 AA was detained again under section 2 of the 1983 Act. He continued to be detained under section 3 of the 1983 Act and was given an "extremely poor" prognosis of recovery from Korsakoff's Syndrome. On 13 September 2010 AA was discharged from his detention under section 3 and went to live at St. Joseph's Residential Care Home ("the Home") under a package of care funded by KBC.


On 20 September 2010 KBC made a standard authorisation under Schedule A1 to the 2005 Act in which the assessors concluded that AA was deprived of his liberty at the Home but that the arrangements were proportionate and in his best interests. On 14 October 2010 AA returned to the Home when it was recorded that he had consumed alcohol and had been abusive towards staff. The Appellant initially responded to the concerns raised by staff, by stating that AA had not consumed alcohol but had only been drinking shandy.


On 26 October 2010 KBC made a further standard authorisation.


On 4 November 2010 the Appellant, as AA's RPR, made an application under section 21A of the MCA challenging the standard authorisation. By section 50(1A) of the MCA a detained person's RPR may bring proceedings in the Court of Protection under section 21A without the need for the Court's permission. The Official Solicitor was invited to become AA's litigation friend, because AA lacked the capacity to litigate.


The parties jointly instructed an independent social worker's report by Ian Gillman-Smith dated 4 April 2011. His report concluded that it was in AA's best interests to be detained at the Home; however, he observed that AA was more able and independent than other residents; that the Home did not provide an adequate rehabilitative element to allow greater independence and autonomy; and he was 'not clear that [the] Home was the least restrictive option for AA, certainly with regards to his future and long-term needs'. He considered AA could be supported further in taking more responsibility for his self-care and food preparation and that consideration should be given to allowing AA to be given periods of time in the community without an escort.


On 31 May 2011 Mr Gillman-Smith prepared an Addendum Report in which he recorded AA's deteriorating behaviour and condition generally and expressed his view that the measures amounting to a deprivation of liberty were both necessary and reasonable.


On 2 June 2011 the Official Solicitor notified the parties and the court that he considered that the section 21A appeal against the standard authorisation served no utility and ought to be withdrawn. The application was made at a hearing before His Honour Judge Gore, Q.C. on 7 June 2011. The Appellant objected. Having heard submissions and evidence, the judge granted the Official Solicitor permission to withdraw the section 21A application, and gave an ex tempore judgment. In doing so, he concluded that all the qualifying requirements for the making of a standard authorisation under Schedule A1 of the MCA were met, pursuant to s.21A(2)(a) of the MCA.


Thereafter AA remained a resident at St. Joseph's, according to the Appellant, against AA's wishes. However, in October 2011 the standard authorisation lapsed. The Home did not apply to renew the standard authorisation, on the basis that (in its opinion) AA was not being 'deprived of his liberty'. Following representations by the Appellant the Home accepted that AA was being deprived of his liberty and applied for a further standard authorisation.


Consequently, on 23 November 2011 KBC made a further standard authorisation under Schedule A1 to the MCA authorising the deprivation of AA's liberty under the terms of his care plan which provided for residence at the Home. This standard authorisation was also made for a period of six months.


The Appellant was, and remains, opposed to the arrangements for his son's care. Shortly after 23 November 2011 [on 9 December 2011], in his capacity as AA's RPR, he made a second application to the Court of Protection under section 21A of the MCA, challenging the standard authorisation dated 23 rd November 2011. On 19 December 2011 DJ Mainwaring-Taylor, as a judge of the Court of Protection, appointed the Official Solicitor to act as AA's litigation friend in the proceedings.


On 20 January 2012 the application came before Mr. Justice Peter Jackson, as a judge of the Court of Protection. He...

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