By Claire Martin, 8h January 2025
(This blog was written in December 2024 and set up for automated release in January in advance of the next listed hearing in this case on 13th January 2025. Note that the Open Justice Court of Protection Project is currently closed and will be reopening on 1st February 2025)
This is a long-running s.21A deprivation of liberty case. There’s a final hearing listed for 13th January 2025, by which time the case will have been before the courts for almost three years.
A pre-trial hearing was before HHJ Beckley on 9th December 2024, held remotely at First Avenue House in London, and that’s the hearing I’m reporting on here.
Background
I only became aware of this case (COP 1347207T) in March 2024 – and it was at that hearing that the phrase “a most distinguished man” was used by counsel for the protected party (P) to describe him (see: “A most distinguished man”). Counsel also said at that hearing that P has consistently stated that he does not want to be living where he is now and that “proceedings have been DOGGED by delay” (her emphasis) and there has been “no tangible progress”
At the March 2024 hearing, it was said that the protected party has experienced depression and alcoholism from 2010, followed by a brain injury (in 2013) that has affected his short-term memory and left him with seizures, which have led to further injuries. Following a long period of living in a location he’s unhappy with, he wants to move back to the area he knows best, and where his mother lives: Kensington and Chelsea. He also wants to register with his previous GP. At the hearing in March 2024, there were two possible placements available and under consideration: one in his preferred geographical area, the other not.
After that previous hearing in March 2024, I reflected at the end of my blog post: “This case seems beset with issues, not only finding an appropriate place for P to live, but also with budgets and who will do what, when. This is the way of things, I understand. I know from my own experience that it is the same in the NHS. People get lost in the melee though – and, even when professionals try their best, delays inevitably happen. Such has been the impact on P’s life here, it seems”.
This blog is an update on the progress of the case in the last nine months. Not much has changed.
Hearing of 9th December 2024
The protected party continues to be represented (via his Accredited Legal Representative[ALR]) by Alison Harvey. At the start of the hearing, she gave an exceptionally helpful summary of progress since the previous hearing, which shed further light on the delays and provided an update on the current position – in essence, that P had said that he did not want to move to either of the options identified at the March 2024 hearing. So, this hearing was to prepare for the final hearing in January 2025, in relation to what the options were now.
Here’s as much of the summary I could capture – unlikely to be completely accurate since we are not allowed to audio-record hearings and I rely on contemporaneous typed notes:
This is a case that has been going on for a considerable amount of time – it started March 2022. The applicant Mr M is described by his psychologist as a very educated and intelligent man who enjoys socialising and is compassionate and kind – he was somebody whose physical and mental health has declined after his divorce. He had a number of problems with alcohol. He moved into a property owned by his mother, in a smart part of the borough. His behaviour became too difficult for his mother, and she moved out. He had a fall in 2013, he was admitted to hospital. The fall led to a brain injury and fairly catastrophic consequences physically and in his mental health. I was struck [by the ?] statement – how many times he’s been in hospital. He’s not in good physical shape. He was discharged to a placement that couldn’t cope and then discharged to the current placement. He has undergone rehab both physical and psychological. He’s made progress but remains someone who needs considerable support.
Two things – the property owned by his mother is of a status and in a position he would like to retain, [There is] also emphasis on getting back to the GP surgery from when he lived there. Proceedings [have been] dogged by every possible procedural difficulty and delay. When proceedings opened the Royal Borough was in dispute with Health regarding CHC [Continuing Health Care] funding; it professed itself unable to carry out an assessment of needs and it seemed orders hadn’t been complied with in terms of [….] and then it wasn’t as court had ordered, and we were told it couldn’t be done. It was suggested that the Royal Borough did not have access to all properties in the Borough, and that Health had access, and that they should be joined as a party etc. Considerable time was spent with the LA saying that Health could do what the LA couldn’t. Health came back and said this simply isn’t true. They had nothing possible to add. So, finally, that avenue of enquiry was shut down and attention shifted to whether there were [Provider Name] properties in the Borough that the LA could identify that would be suitable for Mr M. That was sorted and the idea that Health had extra access was knocked on the head in June 2023. […] Finally some options, two options, emerged in the Royal Borough, in March 2024. Those options subsequently crystallised with an offer in [Provider Name] in the catchment area of the old GP surgery and we all thought ‘Victory!’. He went to see it and declined on the basis it was on the route of the Notting Hill Carnival. He declined the other option because it was in Wembley. [That was] no great surprise.
One thing in the run up to this hearing – it is intended as a pre-trial review, a final directions hearing. One thing is that the LA was content for him to stay where he was, but that’s been thrown into doubt by the PS for this hearing…. The family read it as saying that was not possible. The respondent’s case takes a different view. That brings us up to date.”
The judge, HHJ Beckley, asked about P’s current wishes for where he lives. It seems he believes he should be able to return to the family flat where he lived before, and believes that the ‘machinations’ (Alison Harvey’s term) of one of his sisters (who owns the flat) is preventing this move.
Alison Harvey went on to say that they ‘have reached the end of the road’ in relation both to the possibility of P living with his mother in a family-owned home and to the chance of re-registering with his previous GP surgery. P has recently said he would rather remain where he is if he can’t go back to live in the family home in Kensington and Chelsea.
There was then discussion about P being placed on the housing register to try to find suitable properties in the area of his preference. It was quite surprising hearing this, since it had been discussed (and ordered) at the March 2024 hearing that the social worker would be responsible for doing this. Back then, I wrote: “There was dispute between P’s counsel/ALR and the Local Authority about who should be doing what and paying for it. For example, at one point, searching for potential properties to buy was raised as an option, but counsel for the Local Authority was clear that “It is not the case where we intend to go and look for somewhere in the property market. It is not the job of RKBC”. Who should make the application for social housing was a further issue. Counsel for P was firm: “May I say … the legal aid agency wouldn’t fund [ALR] to fill out any of those forms. There’s no way they’d pay him“. The judge confirmed that this was authorised to be the Social Worker’s role.” (from my previous blog)
The Position Statement for P (kindly shared by Alison Harvey) states: “The court ordered that the local authority make an application for [P] to be put on the housing register by 9 April 2024. Finally that was done, but the agreed application for a two bedroom property with adequate room for a live-in carer was not made and the process derailed so that he was only considered for single occupancy sheltered accommodation, for which he was unsurprisingly rejected. Therefore we still do not have the application as ordered.”
So, the application was made, “finally”, for P to be placed on the housing register (seemingly, according to the Position Statement, after the court order deadline of 9th April 2024), but for the incorrect accommodation, and the application was rejected, so this hearing was taking place no further forward in terms of potential alternative places for P to live.
Michael Paget represented the respondent local authority, Kensington & Chelsea Borough Council (KCBC). He presented information about the process of first applying to, then being considered for, housing on the housing register in the LA. I didn’t fully follow all of what he said:
MP: P’s best interests are to be at [current care home] and his best interests are met there. [This has] never prejudiced P […] we are moving towards confirmation that the requirements under the schedule for best interests are met here. One element is outstanding – that is in relation to the housing register: when making an application to register [if P] is incapacitous it has to be done by someone else. It’s going to be made on his behalf, the Social Worker can do that for him, in the context of Part 6. They can do that for him …
Judge:: I can authorise that ..
MP: Yes and that was implicit in the last order you made. And you will also remember that when making an application under part 6, it’s not conditional, whereas what happened was that P made the application and then the housing department looked at it and thought that supported [living] was the best option, but in fact you just need to be on register and then they will look… so we’ll make the application. [P] can go on the register and at the same time an assessment about whether he will be able to be provided care in standard accommodation. It may not be available, but he can be placed on the housing register. So that feeds into a difference of style in paragraph 2, that the LA is going to make an application on his behalf and it will actively manage his listing on the housing register.”
Another issue raised by counsel for P was contact with P’s mother and how much the LA is doing to actively facilitate this. P has not had face-to-face contact with her since September 2024 (three months) although he speaks to her weekly by phone. There was dispute about whether the LA responsibility for attending to P’s relationship with his mother should be excluded from the court order.
Michael Paget, for the LA, suggested that it was ‘not needed’. Alison Harvey, for P, submitted the opposite: “…proximity to his mother is important. It has been consistently for the LA to keep an eye on how the relationship with his mother is managed – we wouldn’t agree to have that deleted; it is a very relevant feature of the choice of location for him…”
The judge ordered the following: “Two matters then, for today: first is in relation to the application made by the LA on P’s behalf, so he joins the housing register maintained by LA. The wording will say that the respondents shall make the application for P to be placed on the housing register and actively manage it. I agree that‘s a role … the LA’s responsibility. They are not able to make a direct offer … but I would expect, in terms of evidence, an update on the application is to set out what active management had been … [done] … by the housing team. Para 3 (8): it’s very important that contact between P and his mother is maintained as much as it can be. That is repeating an order.”
Reflections
I have observed (and bloggers for the Open Justice Court of Protection Project have described) many cases where a public body has not complied with a court order, or not complied within the allocated timeframe. It seems to me that there are no consequences for the public bodies in these instances. A simple process of reinforcement will mean that, over time, public bodies learn that court orders not complied with do not carry any penalties. So why comply?
In this particular case, the glacial speed is remarkable. The application was made in March 2022 – that’s almost three years’ ago. It’s quite a simple case really: where P will live that is best for him. Yet the LA seems to be dragging its feet, with no consequences. Where is the motivation for public bodies to act on court orders when there are no consequences for not doing so? Whereas there seem to be draconian consequences (committal hearings) when P’s family does not comply with court orders, such as contact or reporting restrictions.
Meanwhile, P in this case languishes not knowing what is going to happen to him, after almost three years, when his mother who is said to be ‘very elderly’ lives a distance away from him and he has very little in-person contact with her.
It must be hugely frustrating for everyone involved (especially following what felt like ‘Victory!’ at the March 2024 hearing) that P turned down an (apparently) otherwise suitable property in his preferred geographical area, and within the catchment area of his previous GP, on the grounds that it was on the route of the Notting Hill Carnival. It’s only 3 days a year!
This case feels depressingly bogged down with (most likely) many systemic factors giving rise to the delayed progress. Surely this is all so much more expensive for services themselves in the end?
The most striking aspect of this case to me was the arduous to and fro – and, it turned out, incorrect – position of the Local Authority that it was the responsibility of Health to secure a property for P. This sort of stalemate is all too common in public services and should really stop – it paralyses a system and makes lives hellish for those we are there to serve.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin and on BlueSky as @doccmartin.bsky.social
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