England and Wales Court of Protection Decisions

 

 

Neutral Citation Number: [2014] EWCOP 34

 

Case No: 12238692

 

COURT OF PROTECTION

 

MENTAL CAPACITY ACT 2005

 

IN THE MATTER OF RR

 

First Avenue House

42-49 High Holborn,

London, WC1V 6NP

 

Date:  8 July 2014

 

Before:

 

District Judge Mort

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Between:

 

	Milton Keynes Council	Applicant
	- and -
	RR (1)   SS (2)   TT (3)	Respondents

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Mr Patel (instructed by Milton Keynes Council) for the Applicant

Mr Campbell, solicitor for the 2^nd Respondent

 

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APPROVED COSTS JUDGMENT

1. I have already handed down judgment on the substantive issues in this case (BAILII: [2014] EWCOP B19). The only issue remaining is that of costs as between the applicant and the second respondent which the parties have agreed should be dealt with on paper. I have received submissions from counsel on behalf of the applicant and the solicitor representing the second respondent.

 

2. The circumstances of the case are recited in my judgment and I do not intend to repeat them here.

 

The Law in relation to costs:

 

3. Costs in the Court of Protection are at its discretion subject to the Court of Protection rules: section 55(1) of the Mental Capacity Act 2005 (‘MCA 2005’).

 

4. The court has ‘full power to determine by whom and to what extent the costs are to be paid’: MCA 2005, s. 55(3).

 

5. The general rule in welfare proceedings is that there is no order for costs: r.157 Court of Protection Rules 2007 (‘COP Rules 2007’).

 

6. The court has a wide discretion to depart from the general rule ‘if the circumstances so justify, and in deciding whether the departure is so justified, the court will have regard to all the circumstances’: COP Rules 2007, r.159(1).

 

7. ‘All the circumstances’ includes ‘(a) the conduct of the parties (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) the role of any public body involved in the proceedings’: COP Rules 2007, r.159(1).

 

8. The ‘conduct of the parties’ includes  - (a) … conduct before, as well as during, the proceedings; (b) whether it was reasonable for a party to raise, pursue or contest a particular issue…’: COP Rules 2007, r.159(2).

 

9. There is now a large body of case-law concerning the court’s discretion but the case-law does not purport to give guidance over and above the words of the Rules themselves.  

 

10. It adds nothing to say that a case must be exceptional or atypical for costs to be ordered.

 

11. Each application for costs must be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule. Beyond that, as MCA s. 55(3)  makes plain, the court has ‘full power’ to make the appropriate order.

 

12. The questions that must be addressed are:

 

Is departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the local authority as a public body?

 

If so, what order should be made?

 

 

13. Departure from the general rule can include cases where there has been a substandard practice by a public body and a failure to recognise the weakness of its own case and the strength of the case against it.

 

14. Public bodies are not excluded from liability to pay costs where it is appropriate for them to do so.

 

Submissions

 

The Applicant:

 

15. Counsel for the applicant concedes that some costs order is warranted as:

 

• P’s removal was unlawful and her Art. 5 & 8 rights were infringed
• There was no justification for the delay in bringing the proceedings to the Court of Protection
• There was no justification for the failure to notify P’s son of her whereabouts for 19 days
• There was no authorisation in place for P’s removal from her home to a care home or her deprivation of liberty until 8/11/12

 

16. In considering what order to make counsel submits that there must be some causative link between the conduct concerned and the costs incurred. He argues that:

 

• There should be no costs order between 12/2/14 and 24/2/14 as the applicant had accepted on 12/2/14 that P’s removal had been unlawful and did not seek to rely on the schedule of allegations
• There should be no order for costs after 27/11/12 being the date the court authorised P’s residence at the care home and the deprivation of her liberty
• The safeguarding concerns were not concluded until 12/9/13 but it is not accepted that the applicant was responsible for the delay in that investigation and its conclusion. This delay was due to the applicant awaiting the outcome of the police investigation and the lack of cooperation from the 2nd and 3^rd respondents. In any event P’s residence, her deprivation of liberty and the restrictions on contact were authorised by the court in various orders.
• It is not accepted that the applicant’s decision not to fund a care package at P’s home was unreasoned or unprincipled or that it presented a ‘fait accompli’.
• The applicant does not accept that their failure to pursue the allegations against the 2^nd Respondent should give rise to a costs order as their allegations were found to be proved by them in their investigation. If the 2^nd respondent had sought P’s return home they would have pursued the allegations.

 

 

The 2^nd Respondent:

 

17. The 2^nd respondent seeks his costs of the proceedings on the basis that all of the costs incurred are a direct consequence of the actions and omissions of the applicant. The costs are in the region of £86,000.00 exclusive of VAT.

 

18. It is submitted by the solicitor on behalf of the 2^nd Respondent

 

• Notwithstanding the applicant’s decision not to proceed with the allegations  and acceptance that P’s removal had been unlawful restrictions on contact persisted until the hearing on 24/4/14 (reference is made to para 39 of my judgment)
• The court orders authorising residence and deprivation of liberty were made on an interim basis while awaiting further information and cannot be relied upon and do not provide a defence to a costs order.
• The investigation should have been concluded before a decision was made to remove P from her home and it should not have taken the length of time it did.
•  The police discontinued their investigation in October and they did not become involved again until later in 2013 after an additional complaint by the applicant. Upon receipt of the 2^nd respondent’s statement in answer to the allegations the police discontinued their enquiries. The applicant cannot attribute delay to the police investigation.
• The applicant’s decision not to fund a care package at home presented the 2^nd respondent with a ‘fait accompli’
• None of the allegations made against the 2^nd respondent have been proved and have always be denied by him.

 

 

Considerations

 

 

19. Prior to P’s removal from her home a number of concerns and safeguarding alerts had been raised on 13/8/12, 3/10/12 and 19/10/12. None of those concerns was investigated by MKC. I have already described that failure as deplorable.

 

20. A further safeguarding alert was raised on 25/10/12. According to the evidence of the student social worker involved in the case that alert, and the failure to investigate the previous safeguarding alerts, led to  the response from MKC’s Senior Practitioner for Safeguarding Adults, ‘that the police should be notified as soon as possible and a place of safety identified’.

 

21. The student social worker further states ‘At this time it was considered due to the escalating injuries and the delayed investigation that it was in P’s best interest that she was removed to a place of safety whilst an investigation took place’.

 

22. Thus MKC’s failure to investigate the safeguarding alerts was a factor in MKC’s decision to remove P from her home on the 25/10/12.

 

23. Prior to removing P from her home MKC had failed to seek an urgent authorisation for P’s removal and residence at the care home. Thereafter the request for a standard authorisation was not made until 29/10/12 and was not given until 8/11/12. The application to the court followed on 9/11/12.

 

24. It is hard to imagine a more lamentable and inexcusable set of circumstances.

 

25. The decision to remove P from her home was one which engaged her Article 5 and 8 rights. MKC were aware that they were dealing with a vulnerable elderly lady who lacked capacity. MKC should have been aware of the need to obtain authorisation before removing P from her home (and the care of her son). It is astonishing and very worrying that they failed to grasp the importance of such a fundamental requirement.

 

26. What of the position after the commencement of the proceedings?

 

27. Having removed P from her home without authorisation MKC then failed to advise P’s son, who was also her carer, of her whereabouts until 13/11/12 and then only in response to a solicitor’s letter.

 

28. Given their failures, and bearing in mind P’s age and vulnerability, one would have expected MKC to deal with the matter expeditiously thereafter. Unfortunately for P this did not prove to be the case.

 

29. The allegations which MKC made against the 2^nd and 3^rd Respondents were denied by them. Those allegations dictated the progress of the case as they were central to its resolution. MKC do not accept they were responsible for the delay in completing their investigation. They point out that the police investigation did not conclude until May 2013 and they were awaiting the conclusion of the police involvement. I do not accept that the police investigation dictated the pace of MKC’s investigation. It was incumbent on MKC to pursue and conclude their investigation as quickly as possible. Even if the police involvement did not conclude until May 2013, which is not accepted by the 2^nd respondent, one questions why it took them until September 2013 to conclude their investigation, and then decide in February 2014 not to pursue the allegations any further.

 

30. The importance of the allegations to the resolution of the case is illustrated in the report of the Independent Social Worker dated 5/7/13 who concluded that if the Respondents were not responsible for the injuries to P then in his opinion P ‘should in the short term remain at the care home until a care plan was in place to support P at home, at which point she should return home’. However if the Respondents were responsible for P’s injuries he took the view that ‘on balance she should not return home but remain in residential care’.

 

31. In their report into the allegations dated 12/9/13 MKC concluded ‘that P has suffered neglect and acts of omission by (the 2^nd and 3^rd Respondents)’ and that ‘this would continue should (P) return to their care as they do not accept any of the concerns or acknowledge any of the responsibility’. Those conclusions informed the applicant’s views concerning contact between P and her son and the restrictions placed upon that contact.

 

32. On the 13/9/13, the day after their investigation had concluded, MKC sent a letter to the 2^nd Respondent’s solicitor stating ‘It is felt that [the care home] is the appropriate placement for P’s needs’ and that ‘MKC has determined that it will not fund a package of care for P in the community’.

 

33. MKC persisted with its allegations against the 2^nd and 3^rd respondents but those allegations were never brought before the court for determination as they were surprisingly abandoned by the applicant in February 2014. That impediment to P’s return home was thereby removed.

 

34. However by then P’s failing health, and the decision by MKC not to fund her care in the community, meant that she had lost the opportunity to return to the home in which she had lived for 32 years.

 

35. The proceedings were not finally concluded until the hearing in April. It was only  then that the head of the applicant’s Older People’s and Physical Disability Service conceded that there were no risks associated with P going out more than once a week with her son.

 

Conclusion

 

 

36. MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision.

 

37. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives.

 

38. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified.

 

39. Accordingly the Applicant shall pay the 2^nd respondent’s costs of the proceedings to date to be subject to detailed assessment unless agreed between the parties. The costs order shall include a detailed assessment of any publicly funded costs of the 2^nd Respondent.