By Bridget Penhale, 8th December 2021
The urgent hearing I observed on 12th November 2021 before DJ Geddes (COP 13841478) was the second in this case.
An account of the first hearing contains useful background information about P’s circumstances and situation – although some of the purported “facts” of that hearing turn out on further enquiry not to be correct.
As stated in the previous blog, the need for an urgent hearing was because the house that P had been living in had been sold at auction and completion of the sale was due the following week (on 18th November). The house needed to be cleared of furniture and effects before then. Additionally, P needed to vacate the property and live elsewhere.
The applicant local authority was represented by Sophie Allan of Kings Chambers, and her instructing solicitor Laura Mitchell-Ghafoor). Two of P’s siblings had been joined as parties after the previous hearing.
P was not present, nor did she have any legal representation. I learnt later from what the judge said that the Official Solicitor (OS) had stated that she would have been available to act on P’s behalf if her costs had been underwritten by the LA. The judge asked why this had not been pursued. Ms Allan responded that she had been instructed by the LA that in recent years this situation (underwriting of costs) had not been undertaken by them. A factor in this situation could be that on receipt of her share of the estate, P would not be eligible for legal aid, although it was acknowledged that availability of these funds would only happen after P’s move from the property.
The social worker for P who had undertaken the capacity assessment for P (referred to in the last blog) was also present.
The hearing started later than scheduled and although planned for an hour, also finished slightly late as well. I was able to attend all but the last 10 minutes of the hearing.
Due to the delayed start, the Judge indicated that it wasn’t necessary for anyone to summarise the background to the case (so it was very useful to have had this outlined in the previous blog). Instead, she immediately moved to ask what had happened since the last hearing and to talk with P’s siblings, as parties.
The Judge asked if the siblings had received the court bundle relating to the hearing and this was confirmed. She then said that the siblings had been joined as parties following the previous hearing as they were believed to have been Executors of their mother’s will. She then added: ‘But that’s not right, is it?’[i]
P’s brother replied that there were independent Executors so none of the siblings were acting (or had acted) in this capacity.
The Judge followed up with a reminder about the matters to be considered in this hearing – that the LA had applied for permission to convey P to a residential care home against P’s wishes. According to the LA, P was not able to make a decision for herself about where she should live and it was in her best interests to be moved to a care home.
However, the Judge also stated that the available information had been misleading at the beginning of the case as P had told the social worker in strong terms that she did not agree with the sale of the house (which she thought was illegal) and believed that she had the right to stay there.
The Judge had not wanted to come to a decision without knowing what P’s view was, even if the language used during her discussion with the social worker was ‘not conventional’.
Counsel for the LA was then asked to update the court on what had happened in the past week.
Sophie Allan confirmed that P’s brother and sister(s) were not Executors of the will.
Further documents received by the LA were from the Land Registry (which confirmed that the house belonged solely to P’s mother), a copy of her Will and a Letter of Administration.
The Will indicated clearly that P was entitled to a share of the residual estate, together with her siblings – the share to be available following the sale of the house.
Most importantly, advice had been received from the Chancery about Probate and appeared to say that the effect of the Will was to confirm the residual estate position. It was therefore unlikely that P had any proprietary interest in either the estate or the property.(A proprietary interest refers to the legally enforceable right to possess or use property in accordance with an official recognition of that right.)
The Judge interrupted at this point to ask if it was right to say that there was no evidence that P had any proprietary interest and this was confirmed as extremely unlikely.
The Judge then asked if P had any beneficial interest in the property. She was told that this also seemed to be very unlikely.
DJ Geddes then said that it appeared that there was one key issue – whether P had an overriding interest in the property (from having lived in the house for many years): this was not something dealt with in the advice provided to the court. She asked why P had lived in the property. Was there perhaps any reference to P caring for her parents? There was a question about whether there might be any remedy against the purchasers of the property if there was such an overriding interest, but given P’s current situation it had not been possible to obtain any relevant evidence of this. In the Judge’s view, it was: ‘unlikely that there is something so significant that it changes the tenor of the advice that had been given’.
DJ Geddes then turned to the issue of P’s best interests and stated that the only practicable option currently was that of the residential placement for P (which would also involve her removal from the house).
Counsel for the LA stated that there was some diffidence on the part of the LA, due to the circumstances of the case, but that they needed to know if the court was able to make an order that the conveyancing of P (to a care home) should take place.
The Judge responded that it seemed that this would appear to be in P’s best interests ‘given the very sad nature of the case’ and that she was working on the basis of documentation that suggested that there was a date of 18th November 2021 for the completion of the sale – but that she wished to ask P’s siblings about this.
P’s brother confirmed that the house had been sold at auction on 21st October, with a completion date of 18th November and that he thought that the completion date timescale might be a fixed period due to the sale by auction. DJ Geddes asked: ‘Is it your understanding that this will be 18th November?’ to which the brother replied that this was what they had been told by the auctioneer.
The brother then explained that he had moved out of the property about 8 weeks previously and that since then his sister (P) had been living alone.
The Judge asked: ‘Do you have any intention to offer a home to P?’ to which the response was: ‘No – I have a flat and it’s too small anyway’.
The Judge then asked if P could live alone and it was possible that she could defend a position that she owned beneficially a share in the property.
The brother replied that there was a risk to P of staying in the house on her own and that during a visit from the care home staff (for assessment purposes) two weeks previously, the staff had said that P was very unsteady on her feet and that they thought that there was a risk to her of using the stairs. He also said that P had been receiving daily support visits from the Intensive Treatment Team (ITT) but that the family had been told that these would stop soon so P would be totally on her own. She was not able to manage her own money to buy food and in any case was not able to cook this. He had been monitoring her bank account on a regular basis and also taking food to her.
DJ Geddes said that in relation to the fact that P lacked capacity to handle financial matters it was necessary to know if the brother (or any other sibling) had a Lasting Power of Attorney, a Deputyship, an Appointee-ship or any other authority given by a court to manage P’s finances[ii].
The brother stated that he did not have any such authority (and nobody else did) so the Judge asked if P was receiving any benefits, to which the answer was ‘No, she has no source of income at all’.
At this point P’s sister interjected and said that this had been the case since P had given up work (because of anxiety and depression) in May 2019 and that she had been living off her savings, including Premium Bonds, since that time.
In response to a question from the Judge, the siblings said that P currently had about £1500 left, but that she had always been very reluctant to engage with any health or care services (including Social Security[iii]). She had always wanted to be in control and would not like anyone making decisions for her. She wouldn’t pursue any claim for benefits as she couldn’t go to strange or unknown places and said it was all too much for her to deal with. In the sister’s view, P had been ‘basically flying under the radar – and was now an acutely unwell person popping up from nowhere…’
This led to some further discussion about P’s finances and their management; it was confirmed that the Official Solicitor had been sent relevant information (including the fact that P would get her share of the residual estate on completion of probate processes). The LA’s view was that a Deputy should be appointed for P but apparently had doubts about whether or not this should be a Professional Deputy. The Judge was clear that the situation could not stay as it was and that something needed to happen in respect of P’s finances but also said that given the hearing that day, she would need to consider what the family could be given permission to do (and apparently thinking out loud, she said: ‘Perhaps access to a current account for day-to-day spending?’).
The judge then switched topic back to the matter in hand and stated: ‘On a sheer welfare basis P can’t stay in the house on her own – and couldn’t even if the house had not been sold’. P’s brother interjected and said: ‘Absolutely, she’s declined greatly in the last few months’ and that there was a big difference between how P had been at the beginning of the year (in January and February) and how she was later (in September and October).
P’s interest in the house – questioning the siblings
A further switch of questioning saw the Judge ask the siblings about whether P had said anything in the past to imply that estate should not be shared (whilst also saying to the siblings that she did not wish to make them feel uncomfortable about this line of questions). The siblings agreed that the issue had not been talked about and said that P had never indicated that she had more right to the property until recently, in relation to having to move out.
DJ Geddes then queried whether the description of P as a carer to her parents was right and also asked why P had come to be living in the house and what had been the nature of her work.
P’s sister said that P had worked in a part-time job at a local university from 2002-18 and had been living at home whilst working part-time.
The brother then said that he had done most of the caring for his mother following her stroke and that he had done all the shopping, but P had helped ‘a bit’.
Their father went into a care home in 2008 and stayed there until his death (no date given) so no care had really been given to him by the children, as his wife had provided this.
P’s sister then said that earlier on P had lived and worked away for some length of time – she had spent 3 years in one northern town, another year in the north-west, and 7-8 years in a large northern city, before returning home. Since her return she had lived in the family home and contributed to utility bills but had not paid any rent and not helped out financially or contributed for several years, although she did shop for her own personal needs.
The Judge asked how the property had been bought and was told that it had been purchased with a mortgage in 1975, and this had been repaid by 1995 (a 20-year repayment mortgage). She then asked if P had paid for any repairs or renovations to the house (a resounding ‘No’ in response) and the brother reiterated that P had only ever contributed to utility bills.
As an attempt to learn more about the situation, DJ Geddes then questioned whether, if P said that her mother had said she could stay in the property, that is something that could have happened. The siblings said no, this was not possible as none of the siblings had been given preferential treatment by their parents. The brother was asked if he rented or owned his flat (owned) and as a follow-up question to both whether any of the (4) siblings had any substantial amounts of money or if they were of ‘modest means’ to which the sister replied that she was retired but owned her own house – but generally the answer for all was no significant funds.
The Judge also asked if there was anyone who might have a claim to the house, but then answered her own question by saying that any claim on P’s behalf was theoretical as there was no-one to bring a claim and in any case the house had been sold. So – it was time to come to a decision.
However, there was then a slight diversion into a minor consideration of whether there might be an Inheritance Act claim in relation to P (it was viewed as unlikely) and the Judge said she was thinking that if the sale couldn’t be stopped by an injunction whether there might be such a claim – but it was acknowledged that this could be financially devastating for a (relatively) small estate. Further, it was also recognised that if such an action were successful, P might possibly have access to a larger share of the residual estate, that she might be able to use in future for accommodation (a flat).
Waiting for the Official Solicitor
Following brief discussion about the appointment of a Deputy, the Judge said that she felt that the key issue was whether a Deputy was needed immediately or could wait for a couple of weeks until the OS became involved. Counsel for the LA agreed that the matter could wait for OS involvement, particularly as the residual estate was not likely to be large with 4 siblings’ interests involved – with recognition from the Judge that P might be the least advantaged of them. The judge also then added: ‘There’s no point in spending money on buying property if P is not able to meet her own needs – so the best might be to have a supported tenancy’.
DJ Geddes then said that she considered it was best to take the least action needed until the OS was on board and that she thought that with the currently available information it would be in P’s best interests for the interim order relating to the current matter of conveyancing P to a care home to be approved.
Tenancy vs care home?
At this point Ms Allan again expressed some diffidence about the situation and was asked by the Judge what this related to.
The explanation was that the LA was concerned about the potential impact(s) of the move on P but recognised that there was no viable alternative. The LA was apparently amenable to looking at a supported tenancy for P – but clearly this could not be achieved before completion of the sale on 18th November.
The Judge then said that she understood that time would be required in relation to P being absent from the house in order that it could then be cleared prior to the completion date and Counsel for the LA confirmed that this was the case but that this had only been fully known about at short notice and she wondered: ‘If the court was minded to approve P’s conveyance from the house’ – or what might happen if this was not possible.
DJ Geddes stated that she considered that probably 1-2 days would be needed from Monday (15th Nov) before the house would be ready for the purchasing completion. And whilst she wished to applaud the Chancery Division for thinking about tenancy arrangements, she thought any tenancy would likely be for a set period of 6-12 months and in any case would take some time to arrange.
Further, was the LA able to say ‘hand on heart’ that a tenancy could be for a prolonged period of time? Ms Allan’s response was that the LA ‘would not put its neck out that far at the moment’ but that in any case, P did not have the assessed capacity to live in a house or on her own at the moment.
The Judge then replied that she was aware that there would be a need for P to be provided with support, but that this was not likely to be possible from the ITT, so she was not certain that this option was worth exploring at that point.
P’s brother interrupted at this point (perhaps in an attempt to get back to the main issue) to say that the completion date was arranged and a house clearance company was provisionally booked for just prior to that and he was not sure what the consequences of a delay or failure to meet the completion date might be.
The Judge stated that, although she was not an expert in this area, she thought that there would be serious financial consequences if the date was not complied with as the house had been sold at auction.
P’s sister then joined the discussion and said that the problem was exacerbated by the fact that the property was a large Victorian house with 5 bedrooms – with hundreds of books, lots of furniture and personal items and that the family had not been able to move anything with P in the house as she would not permit this.
At this the Judge suddenly said: ‘It’s 12.55…’ (nearing the end of the time made available for this hearing) and the key issue was that it was not in P’s best interests to remain in the property at all, so Ms Allan again asked if the conveyance plans, as detailed in the documentation could be approved.
The social worker had made a provisional booking with a specialist company to assist with the move for early the following week; she had indicated that she would be present as someone who P knew (at which point P’s brother said that he would also attend) but there was acknowledgement that it might take more than one attempt to move P out of the house.
DJ Geddes said that she would not prescribe an earliest date for this to happen, but she did consider that it was in P’s best interests to move and that she should be ‘conveyed to the residential care home in accordance with the conveyance plan that had been drawn up’. It seemed that these plans included provisions to attempt to minimise distress to P, and both a relevant risk assessment and restraint policy had been provided to the court. It was also apparently evident that the intention was to ensure that anything done (to effect the move) was with these provisos in place and that the deprivation of P’s liberty should include the minimum interference with P’s rights and should be ‘…proportionate to achieve P moving out’.
The Judge said she had read the statements provided by the specialist service and said that she hoped that the service would enable P to comply with the move and that the minimum would be done in order to ensure that the move and conveyance to the care home happened. The decision could not be put off any longer, and although there had only been 1 week since the last hearing, in view of the circumstances it was not possible to allow any more time – and the judgment that would be handed down would say this.
D J Geddes then moved to rehearse the terms of the judgment, with some discussion with Ms Allan about some minor changes to the draft order that had been drawn up before the hearing. The Judge said that the final order made would indicate that the LA should ‘implement conveyance as soon as possible – and no later than the end of the day on 15thNovemberh’. In any case conveyance was authorised to take place within 7 days as an urgent authorisation. She also wished to determine directions for another hearing to be held before her in a couple of weeks and a date of 10th December 2021 was discussed.
Before the next hearing, DJ Geddes asked for a statement from the social worker about what had happened and how P was managing in the care home, together with any additional information from the LA about future plans.
The aim of the hearing on 10th December would also be to explore possible treatment and other options. It was hoped that the OS would be able to join the hearing and provide some information about P’s wishes and feelings.
At this point another discussion commenced with the siblings about whether they should remain as parties to the hearing and how they might wish to proceed with this (could just one of the siblings attend?).
Unfortunately, at this point I had to leave the hearing for another appointment, so did not hear the outcome of this discussion, or indeed of the hearing.
After a lot of to-ing and fro-ing in terms of discussion of points – some that appeared more-or-less relevant to the issue at hand (given that I did not have sight of any documents) – the Judge appeared to make the final decision relatively quickly. Although the outcome was actually never really in doubt, it seemed that suddenly, just like that, P was to be removed from her home and placed elsewhere within a couple of days.
As a non-legal professional, it seemed to me that during the hearing the Judge was ‘thinking out loud’ for periods of time and that although her views did not appear to alter significantly, there was an element of rehearsal (and response) to various arguments – and possibly to any challenges that might be made to the decision that was being taken. Clearly the Judge would not want to be viewed as rushing such a significant decision and indeed some of the information that transpired (for example: P had not lived in the house on a continual basis and had lived away for quite a long period of time when younger; she had not cared for her parent(s) and had also worked successfully for a substantial amount of time; she had not paid rent or contributed to the upkeep of the property) was very useful to help to fill in some detail about P’s background and to help develop some sense of her as a person.
Nonetheless, the absence of P from the hearing was rather troubling. And although there was some reference to provision of both care and support to P, there seemed to be a lack of clarity in relation to this – perhaps because she did not appear to have received a full assessment of her needs, particularly in relation to her mental health. In addition, unlike in other hearings I have attended, the Judge had not been able to meet or have a discussion with P, so this tended to add to a sense of incompleteness, although her inclusion of P’s siblings and their views throughout the hearing was respectful and sensitively achieved.
I think that the troubling/troublesome element was exacerbated for me by the apparent de-personalisation or even objectification of P that seemed to happen during the course of the hearing. Consistent use of the terms ‘conveyance’ and ‘conveyancing’ seemed to mask the fact that P was to be forcibly removed from the house – the place that had been her family home and where she had lived on a continuous basis for almost 20 years – and that she was to be placed, apparently wholly against her wishes, in an institutional setting, albeit a care home rather than a hospital. At several points I wondered why ‘removal’ was not being used, and questioned whether this might in part be due to some need to objectify and distance/other the situation in order to make it more palatable – or even to diminish the human side of the circumstances.
And although this was a court of law, I was struck by the absence of any mention of the possible effect(s) of this move and this loss on P. Whilst it was clear from evidence heard that P’s ability to care for herself and to live autonomously was at that point really quite restricted and that this was indeed an urgent situation in which a decision and definitive action was needed, I was left quite uncomfortable with aspects of the hearing.
In addition, from professional experience as an Approved Social Worker within the remit of the Mental Health Act 1983[iv], I very much doubted that P would comply with being removed from her home – or with being deemed to lack capacity to make the decision about where to live for herself.
I await the next hearing, and seeing the part played by the Official Solicitor in representing P’s best interests.
Bridget Penhale is Reader Emerita in Mental Health of Older People. She tweets as @bpenhale
[i] All quotations are as accurate as possible but as we are not allowed to record hearings, they are unlikely to be verbatim.
[ii] The Judge outlined what these were for the siblings. Appointee-ship refers to an authority in relation to Social Security Benefits on behalf of a claimant
[iii] Now Department for Work and Pensions (DWP)
[iv] Approved Social Workers, or ASWS were the precursors to Approved Mental Health Professionals – AMHPs – and involved in assessment of individuals under the auspices of the Mental Health Act.