When P’s best interests aren’t in a Council’s financial interests

by Daniel Clark, 21st April 2024

The court has previously found that it is in the best interests of Mr B to remain in his current care home. However, unless he obtains Continuing Healthcare funding, he will have to move because the local authority aren’t able to meet the high cost of the care home. To add insult to injury, the Transparency Order prohibits me from identifying which local authority is involved in this case. 

This case (COP 13978955) was back in court on Wednesday 13^th March 2024. It was heard before District Judge Parker, who was sitting remotely (via MS Teams) at Birmingham Family Court. Varsha Jagadesham, of No5 Barristers Chambers, represented Mr B via his litigation friend, the Official Solicitor. Unfortunately, I can’t tell you who represented the respondent local authority because she is employed by that local authority.

I will first explain the issues with the Transparency Order, and then detail what happened during this hearing. 

Transparency matters? 

I received the link for this hearing very late. The case was listed to start at 12noon but another observer and I didn’t receive the link until 12:15. When we joined the link, the judge seemed confused by our absence and I think it’s fair to say that this was an administrative issue rather than a conscious attempt to exclude us.

We hadn’t received the Transparency Order but the judge explained that it was in the usual terms. I took that to mean that it prohibits the publication of information that identifies, or is likely to identify, P or where he lives, or any of his family. 

However, when I requested the Official Solicitor’s position statement I also asked for a copy of the Transparency Order. This was simply so I could provide Celia Kitzinger, our blog editor, with a copy: after all, she is also bound by the Injunction but can’t comply with its terms if she doesn’t see it. 

I was surprised to see, in the section that details the Information covered by the Injunction, that I cannot publish “any material or information that identifies or is likely to identify that […] A Local Authority is a party to these proceedings”. This also means that I can’t identify the ICB because to identify the ICB would mean someone could reasonably identify the local authority. The ICB are no longer a party but are nevertheless very involved in this case. 

These are not the usual terms of a Transparency Order. A Transparency Order should protect P’s identity and it is very rare indeed for the identification of a local authority to make it possible to identify P. I was confident, having had the benefit of already attending the hearing and reading the Official Solicitor’s statement, that risk was so small as to be almost non-existent. 

I therefore wrote an email to the judge asking for the Transparency Order to be varied. I believe that the name of the public bodies are of legitimate public interest for two reasons. First, as I will explain, its finances are of real importance in this case. Second, public bodies are funded by our taxes, and the public have a right to know how that money is being spent (or not spent). 

The judge responded reasonably quickly, asking the parties to seek instructions. He explained that, if there was no objection, the Order would be amended. If an objection was received, submissions would need to be made and the matter dealt with at the next hearing.

Unfortunately, I have heard nothing since. I have delayed writing this blog in the hope that an amended Transparency Order would find its way into my inbox. It has not but, with the next hearing only a couple of weeks away, I have made the decision that this blog should be published without the identity of the local authority and ICB.  I will update it (assuming I am allowed to do so) with the names of the public bodies when I hear back from the judge.

Improving Mr B’s quality of life 

Mr B has a diagnosis of a progressive neurological disorder which is the cause of his lacking capacity to make his own decisions about where he lives and receives care.  He has challenged his deprivation of liberty (at a care home) under s21a of the Mental Capacity Act 2005. At a hearing in December 2023, which we have not observed, the court found that it was in Mr B’s best interests to stay at his current home due to risks associated with falls and choking. 

In the words of the judge at the start of this hearing, “this decision didn’t go down too well”. The Official Solicitor’s position statement explains this in more detail. Mr B was very upset with the decision, and had (out of character) been verbally and physically aggressive towards carers. He has reported being low in mood, is communicating needs rather than having a conversation, and hasn’t engaged in any group activities (which he previously did). 

Part of the focus of this hearing was to look at what could be done to improve Mr B’s current situation.  The judge was clear that Mr B simply cannot be coerced to be out and about; “he needs to get back into the pilot seat”. 

Given his love of football and the cinema, there will be further assessments on how visits to both of these can be accommodated, as well as how he could visit family. The judge also mentioned that he understands that Mr B’s Netflix subscription has lapsed, and he wondered whether that could be sorted too. This will mean Mr B can watch his favourite film series. 

Overall, I was very impressed with how familiar the judge was with Mr B’s likes and interests. Clearly, he wanted to ensure that Mr B’s quality of life could be improved as much as possible, and took an active role during the hearing to ensure that nothing was missed. 

Finances 

Mr B’s stay at his placement was being funded by an ICB, which had been a party to proceedings. However, following a Continuing Healthcare funding review, he was assessed as being no longer eligible for this. 

While his sisters are appealing the funding decision, the team in charge of the review are very busy and it will take some time. To offset these delays, the social worker has submitted a new CHC checklist (by which claims are assessed) but this could also take some time. 

The local authority is funding the care home but, because of its high costs, they are not willing to do this indefinitely. They may withdraw their funding before any appeal or new assessment is complete. Another potential care home has been identified but this is less than desirable. The judge put the situation like this:  “I appreciate the local authority are trying to continue the funding but they cannot continue it ad infinitum. Suffice to say, in December I made a best interests decision on the basis that Mr B remains in his current home. It would add insult to serious injury if, having made that decision, he then is moved away from a place where he has been for a significant period of time, which is local to his family, which the other home isn’t…There’s a tipping point [for people, especially given] all the adversity and difficulties he’s coming to terms with. That’s really worrying.”

This is a truly intolerable situation. It is not the fault of individual actors, all of whom are focussed on Mr B’s best interests. It does, however, speak to the financial management of a certain Council. It also speaks to the decision-making processes of a certain ICB: how can somebody with a progressive disorder be assessed as eligible for CHC funding only for this decision to be revoked? 

There’s an awful lot to be said here. This case raises questions about the conflict between P’s best interests and a local authority’s financial interests. It also raises questions that I can’t actually ask in this blog because to ask them would probably lead to someone being able to identify the local authority. 

Hopefully, by the time of the next blog, the Transparency Order will have been varied so that this case can be reported fully. 

This case will return to court on Friday 10^th May 2024. 

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132