P loses bungalow option due to assessment delays

By Celia Kitzinger, 7 June 2023

This was a thoroughly depressing hearing.  

I asked to observe it (COP 12446297 before HHJ Godwin) without much idea of what it was about, simply because I had some time free and noticed a hearing in Wales – which we cover less than we should.   Access to the cloud video platform hearing was swift and efficient.  Everything went downhill after that.

I was sent a Transparency Order (with the link) which, as usual, says I can’t write anything likely to identify P or P’s family or carers, or where any of them live.  Unusually, though, the Transparency Order also says that I can’t name the local authority bringing the application.  I wanted to ask why the local authority can’t be named.  It’s a public body and should be held accountable – especially (as it turned out) when it seems to be failing badly.  I wrote an email to the person who’d sent me the link asking him to bring my concerns to the attention of the judge, and also raised the matter in the ‘chat’ box on the cloud video platform.  The judge did not address me about this, so I can’t name the local authority. I do not know how Article 8 and Article 10 rights were balanced in making the decision to prevent the public from knowing which local authority was involved.

Nobody provided a summary of the case for me as an observer and nobody volunteered position statements.  I have pieced together my understanding of this case on the basis only of what I heard in court.  

The hearing began with the judge expressing his “disquiet” about not having received the paperwork until an hour before the hearing.  The lawyer for the applicant local authority apologised, but didn’t explain why that had happened.

The judge had been provided with a draft order that had (I think) been agreed between the parties – but it seemed that several successive versions had been sent (including one very recently) and “the draft I have doesn’t indicate what time it was prepared”.  The draft order  also turned out to have multiple paragraphs with the same designation, which didn’t help when the applicant lawyer tried to go through it with the judge (“the first 2(b) or the second 2(b)?”).

Counsel for the Local Authority

Counsel for the local authority (Richard Alomo) said he would “talk the court through the order”.  He was not an impressive advocate.  He worked his way through the recitals, “confirming P’s placement, when she moved there, and the restrictions she’s currently subject to”, saying that she was undergoing assessment from an Occupational Therapist (OT) for two alternative placements.  The judge (HHJ Godwin) interrupted¹:

Judge:  Why is it taking so long?  Why five months to do this form of assessment?

Alomo: It only started about 3 weeks ago.

Judge:  P is occupying a designated ‘assessment’ flat, and she’s been there since 31^st January this year. I’m told the assessment will not be done until mid-June.  Surely when someone goes into an assessment flat, you expect them to be assessed?

Alomo:  I don’t disagree.  This is a complex case. There have been meetings every week. It has had to be taken slowly.  But the report will be ready by the end of June.

Judge:  Why was it only started three weeks ago?

Alomo: (pause). The social worker gave me an explanation for that.  I cannot find it in my notes.  My instructing solicitor can perhaps send me a note answering that question.

Judge:  She’s unsettled about the fact that she’s occupying temporary accommodation. It’s a matter of concern for her.  She needs a permanent home.  It’s taking five months since her placement started for that assessment to be made. And I’d told the assessment only started three weeks ago. That’s not fair on P.  

Alomo:  I don’t disagree with that.  I hope to be able to advise the court on the reason for that.  However, looking at the timetable moving forward it is not unreasonable to be looking at having the OT assessment by the end of June.

Judge:  It is unreasonable for the assessment not to start until May when she’s been there since January.  She’s not happy being there. We know that. And yet the assessment didn’t start until early May. This case is limping along, Mr Alomo, and there needs to be an injection of pace put into it so that she can move to a permanent home. […]. Well, we are where we are, but I am expressing disquiet that she’s been in that assessment flat for four months without anything happening at all.

Then it turned out there was a problem with the capacity assessment.  The most recent assessment of P’s capacity to make her own decisions about care and residence (and a host of other matters, including litigation capacity, contact, and internet use)  was a year out of date.  The judge was concerned that  “there is reference to a Special Education Needs report, but I haven’t seen it“.  He was also concerned that a capacity assessment needed to take into account P’s means of communicating as a profoundly deaf person – she uses British Sign Language, but also other means of communication, and it’s not clear what those are.  

Things were going to be further delayed by the need for a social worker’s report which (apparently) couldn’t be provided under after the Occupational Therapist’s report. 

The five months the judge had already found unacceptable was now stretching into six months.  He returned to his complaint, sounding very frustrated.  

Judge: Why wasn’t the OT assessment started until May, when she’s been occupying the assessment flat since January?  She herself is distressed to be occupying a temporary home.  She wants a permanent home. It is incumbent upon those caring for her that this assessment is carried out without delay, and five months is not without delay.

Alomo:  The work required of the social worker is quite extensive and it will take her some time to complete the work set out in that paragraph. There needs to be an analysis of the realistic options as far as P’s residence is concerned.  And it cannot be completed without the OT assessment being available, and that’s why we’re saying it will take until 21 July to be completed.

Judge:  Yes, but if the assessment had been carried out promptly, we wouldn’t be in this position.  I’m told she’s been informed she’ll be moving to the bungalow across the road, or to a flat upstairs in the building she’s in now.  She’s expecting that to happen.  I’m possibly stealing Ms O’Shea’s thunder, but really this matter should have been pressed forward a lot sooner than it has been.

Alomo: I acknowledge well and truly the concerns and apologise to the court.

There was then some discussion about how soon the case could come back to court, and the plan was to list it again for 3^rd August 2023 at 10am.

Solicitor for P

Ms Clare O’Shea was representing P via her litigation friend.  She began by saying there was “quite a lot to unpick” in what Mr Alomo had just said. 

First of all, she said, it had been revealed in the course of the advocates’ meeting just before the hearing that the bungalow P had been hoping to move into “has already been lost”. 

“Because of delay?”, asked the judge.

“Well, as you know, they are like hen’s teeth”, said Clare O’Shea.  “Unless the local authority is prepared to pay to reserve a placement, they are just going to let it go as soon as someone comes along that it’s suitable for”.    

Judge:  She’s been told that she’s going to move into the bungalow and you’re telling me this cannot happen.  So, the options that I was advised were available are no longer available because of the delay.

O’Shea: This wasn’t drawn to your attention by Mr Alomo.

Judge:  When things are not going as you expect them to go, make an application!  Bring it back to court.  Let’s have the Health Board explain why there has been such a delay.  The court is here to help P, but her position has worsened. There has been a delay during which the options potentially available for  herin January are no longer available.

O’Shea: I agree there has clearly been a significant delay.  The statement of the former social worker set out all the assessments required, and they’ve just simply not been progressed.

Judge: No.

O’Shea: So, pragmatically, because they’ve not been done, the bungalow has been lost, and the flat is not reserved.  In the advocates meeting I did try to see if there’s any way, if options are going to be lost, I put it to them whether there was any room for manoevre.  The OT assessment, which the local authority says must come in before the social worker can make a best interests assessment of the placement options – could they not make a best interests decision sooner, just to try to maintain the one remaining option?  But the local authority said no. They said the OT assessment was really necessary.  I did put it to them that a move from the assessment flat to another flat in the same building was really like-for-like.  But they said it was a move from a ground floor flat to a first floor flat, though I’m not quite clear of the significance of that, so the OT assessment was required.  She loved the idea of the bungalow and was quite excited by it.  And now it’s not an option.

Judge: Not only that, but she’s going to see someone else move into it, across the road.

O’Shea: The social worker has indicated that those kinds of discussions about options won’t be had with P in future.  But when options might be lost, should there be consideration of whether the best interests decision should be made sooner.  When we come back to the next hearing, we are going to have lots of evidence, and no options.

Judge: I see from paragraph 18 of the order that the package of care proposed may be “on a trial basis”.  That almost begs the question  – if the flat upstairs is available now, why can’t the trial take place there now.  Otherwise, we will be back in court in August with no options at all.  Her hopes have bolstered by being told she’s going to move into the bungalow, and she going to see someone else move in there.  She’s distressed by being in temporary accommodation.  She wants a home of her own she can settle into.  By the time we have the reports that have been promised, the options are no longer available.

Alomo:  I will record that as something for the local authority to consider.

Judge:  It would be helpful to know why it is that this OT report is going to take a further two months.  Mr Alomo indicates it’s been in preparation already for three weeks.

O’Shea: It will alarm you, as it alarmed me, to be told-  The first bombshell at the advocates’ meeting was that it may not be ready until September. There were frantic discussions.

Judge:  That is quite scandalous.  

O’Shea:  I made loud noises at the meeting and there were phone calls made and an assurance, by phone, in the meeting, that it would be ready by the end of June.

Judge:  If it is not in by the end of June, bring this back to court. This is outrageous.

O’Shea: I give you my assurance I will keep a close eye on it. I did moot joining the Health Board. The social workers felt that the Health Board didn’t need to be joined as a party – there have been recent changes and they have a close working relationship.  But I think one more delay with the health side is going to necessitate them being joined.

Judge: It beggars belief that her psychological wellbeing is not being considered by the Health Board. I really do ask you to bring this matter back if there’s any suggestion of further delay.

O’Shea:  She is complex, and she’s been going through a tough time recently and is obviously struggling.  In their previous statement back in March, the local authority was saying they needed the OT assessment, and a Psychology assessment and a Speech and Language Therapy assessment.  They raised that, but a decision was made not to overwhelm P, so that’s why there is only the OT focus.  There will be a delay with Psychology because the psychologist is going on maternity leave.  So really, these assessments are not being progressed.

Judge: It begs the question, does the local authority need to instruct an independent Psychologist.  I can only ask you to bring these matters to the attention of the court so we can assist P.

O’Shea:  And the capacity evidence has been sort of parked.  When I was first instructed, one of my first actions was to look for experts in deafness. But then it looked as though there would be an early breakthrough all of a sudden, with specialist deaf placements.  But the breakthrough didn’t happen, and she came here. It’s safe to say I’m kicking myself for not progressing it at that time.

Judge: Evidence of capacity is fundamental to the jurisdiction of this court.  The restrictions she’s under do need to be very carefully considered.  She signs in a language of her own, as well as BSL.  There needs to be someone who can communicate with her.  With all due respect to the recently qualified social worker who assessed her capacity before, the report we have is fairly perfunctory.  She is using the internet and social media and has the ability to use social platforms, and she may have greater ability than is suggested.

O’Shea:  Your Honour, I absolutely hear you loud and clear.  I will make an application for an independent expert report.

Judge:  The sooner that application is made the better.

O’Shea:  I will go back through my file. I did a search previously.  I will look for an expert who can assist with the capacity assessment first, and then assist with the care plan, and with best interests as well further down the line.

Judge: Not too much further down the line. We need to move this case along. […]. This case really must be moved on, for her benefit.  I will list the case urgently if there are further delays.

Finally, the judge turned to Mr Alomo and apologised for what might look like “shooting the messenger” but re-emphasised that the local authority “must make every effort to bring matters to a happy conclusion. If there’s any more delay, and we need to join the Health Board, then we’ll do that. Include in the order that if there is any slippage, then the case must be restored to the list”. 

Mr Alomo, on behalf of the local authority, said that he had now had an answer as to why P’s OT assessment was only started in May, despite her having lived in the temporary ‘assessment’ flat since January.  The answer was “the Health Board has staffing difficulties and P has been on the waiting list for some time”.

The judge pointed out that there are Independent OTs available and ‘when there is delay causing distress to someone in P’s situation, consideration needs to be given to that”. 

I will be interested to see what progress has been made on 3^rd August 2023 – by which time P will have been in the temporary assessment flat for more than six months⁽²⁾.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 420 hearings since 1^st May 2020 and is a prolific blogger.  She is on LinkedIn (here), and tweets @KitzingerCelia

_{¹ Quotations from the hearing are based on contemporaneous touch-typed notes and are as accurate as I can make them, given that we are not allowed to audio-record hearings. They are unlikely to be 100% verbatim.}

²_{The August hearing was adjourned. Instead of hearing the case, the judge approved an agreed order from the parties, in essence authorising a ‘transition plan’ enabling P to move into the bungalow (which had somehow become an available option again) in early September 2023. The next hearing was listed for 5th December to allow time for P to settle in and provide for an assessment of how it was working out for her. The judge also directed the parties to address the transparency issues I’d raised. See next blog post about this case called: “British Sign Language, capacity and transparency”.}