By Daniel Holt, 2nd July 2025
The case I observed in person before District Judge Clarke sitting at First Avenue House on 9th June 2025 (COP 20015914) was brought by the London Borough of Lewisham (the “LA”) and concerned a deaf adult with a mild learning disability (“P”), who was represented by the Official Solicitor (the “OS”).
This matter encapsulates many of the nuanced challenges health and social care professionals routinely grapple with when capacity, communication, housing, and safeguarding collide. This hearing had a time estimate of 1 hour, during which the court was set to consider P’s capacity, best interests, and deprivation of liberty. The OS applied to the Court for an order allowing an expert capacity assessment.
The case is centred around P’s refusal to leave his long-term home, a property he has occupied since 1988 despite its dangerous disrepair. A report in 2022 deemed the property uninhabitable. The living conditions are profoundly concerning, with a lack of electricity and water, possible asbestos, structural issues, and significant hoarding. P has continued to resist engagement or attempts to access the property since that time. He also refused to attend court or meet professionals for this hearing.
The protected party presents as a highly vulnerable adult with significant communication barriers. He is deaf, but he does not fully understand or use British Sign Language (“BSL”). This means someone fluent in BSL, such as an interpreter, would not necessarily be able to communicate with him. Instead, he has a unique and idiosyncratic method of communication that uses images. This information is shared effectively only with one social worker, DS, who is retiring imminently. The depth of the connection P has with DS and the trust she has managed to build has proven difficult to replicate.
One question that needed to be answered was, “How can we engage with P with minimal distress?” The LA solved one aspect of this question. The LA reached an agreement with DS to compensate her for continued assistance in supporting P. This is clearly ideal for helping P, and it is hoped that DS can assist with communication moving forward. The court ruled that an application for a BSL interpreter could be made if DS was unavailable. However, employing DS in her retirement raises questions as to whether such a measure is an appropriate option. Many social workers will have clients with whom they have a particular understanding. For practitioners, this raises an essential point: transitions and succession must be anticipated and planned with exceptional care to avoid deficiencies when social workers leave their roles.
Another aspect was where the assessment could be completed. The OS submitted that, ideally, P would be assessed in a space familiar to him. His current home is not possible because it is unsafe, and nobody has been able to access it. The best location would be a familiar place that P cannot suddenly leave. One option suggested was the LA offices, where he goes for chats with DS, but he does not necessarily attend on the days for which he has an appointment. Now DS will be retired, which means she will only be there at the allotted times.
Additionally, the parties cannot know what date and time to book the expert. This remained a problem to be solved despite the best efforts of the parties and the court.
Difficulties such as these show the extent of the problem-solving elements involved in this area of law. Health professionals reading this will understand the tension between the urgency of removing a vulnerable adult from unsafe conditions and the ethical and legal imperative to assess capacity properly and facilitate participation. There is no shortcut to these obligations. The answer is rarely one-size-fits-all, and engagement is not a luxury; all reasonable measures should be taken to ensure it. The court itself was creative, too, by permitting a photograph of the court to be taken to familiarise P with how the court might look. This request was unfamiliar, but the court carefully considered it. The judge concluded that a photo could be taken as long as the courtroom was empty and the judge had risen. This showed the court’s willingness to assess and facilitate novel means of enabling participation.
A third aspect is the choice of expert to carry out the capacity assessment. In this case, the preferred expert is Dr Sue O’Rourke, a consultant clinical psychologist with specific BSL and complex communication expertise. This was despite her unavailability for the next two months (until August). This choice was not about convenience but quality. As the OS rightly argued, given the number of failed attempts to engage P, only the “gold standard” will do. The alternative expert suggested was believed to be below the standard required. This shows that knowing and understanding the personality, skills and qualities of your expert is essential. Then, you ask the question of how the expert will engage with the individual. Engaging an expert without considering these factors seems insufficient.
A fourth aspect was improving the court’s understanding of the plan for P. The OS accepted that steps still need to be taken before the OS can take a position on removing P from his home, including the completion of the capacity assessment. The judge noted that there is no clear indication of what works need to be carried out, how long P will need to be absent from the property, or where he will be housed if he is removed – all of which need to be satisfactorily arranged before an order can be made. Interestingly, a third-party service that supports self-led hoarding clearance and property recovery with a trauma-informed, empowerment-based model is being reintroduced. It is a creative step despite its limited success with P in the past. Its re-involvement reflects a broader principle of multidisciplinary problem-solving, whether professionals are social workers, psychologists, or housing officers. This case is a reminder of how our roles intersect and why creative, person-centred approaches are vital.
The Court ordered the following:
- The landlord be notified in writing that, under Rule 9.14, they would be bound by the proceedings as if joined. Should they fail to cooperate, a formal application for joinder would be considered.
- A 21-day deadline was set for initial disclosure (30 June 2025), allowing time for an urgent ‘CoP9′ application on 48 hours’ notice if required. If the landlord failed to provide an alternative accommodation list by the deadline, they were to set out proposed options, including property type, location, and estimated timeframes. The court agreed that hotel accommodation was unsuitable and directed that this be reflected in the order.
- Coordination was to be managed through DS, available until 20 June 2025. A handover document outlining future engagement strategies was required before her departure. This had been completed and was to be served on the OS by 16:00 the day following the hearing. The judge required DS to provide a final statement before leaving her post, explaining her most recent contact with P, information relayed to him, and arrangements for any unplanned visits by P to LA offices. The judge also acknowledged the breadth of DS’s informal contribution and directed a formal order requiring her to provide a statement.
- Dr O’Rourke’s report is due by 29 August 2025. The OS took charge of the first draft of the Letter of Instruction, due by 11 July 2025. The LA was to respond by 18 July 2025, and the final letter was to be sent by 16:00 on 21 July 2025. The letter would confirm dates for Dr O’Rourke to assess P. The LA anticipated it would take seven days to confirm DS’s availability. These timelines were to be recorded in the recitals, with details on transition arrangements.
- A Roundtable Meeting was set for 25 September 2025 to allow three working days before finalising the bundle. The final hearing was scheduled for 1 October 2025.
- The LA is required to file the bundle and permission statement at least five working days before the hearing. The OS is then to file its permission statement three working days before the hearing.
- Any application to vary was to include a justification. The judge ordered that the hearing could not be vacated without two working days’ notice and express permission.
This case contains five key takeaways for practitioners in that regard. First, start succession planning early when a key worker with a unique rapport is about to depart. Second, assessments involving communication difficulties could require expert, culturally competent input. Third, capacity assessments must not be rushed, and the timeline must serve the person’s needs, not institutional convenience. Fourth, multidisciplinary collaboration is essential in ensuring good outcomes. Fifth, participation must be creatively facilitated, not just documented as “attempted and failed.”
Whether P can be supported with engaging remains to be seen. However, cases like P’s are why the Court of Protection exists. They are not easy or quick, but they matter.
Daniel Holt is a barrister keen to develop a practice in the Court of Protection, public law, community care, and education law. He combines legal rigour, compassionate advocacy, and lived experience to support those navigating complex systems. His early education at a special needs school informs his commitment to proceedings involving disabled people and people with mental illness who are often underrepresented. Daniel undertook an LLM in Human Rights Law, focussing on mental capacity and drafting a dissertation on the Mental Capacity Act 2005, European Convention of Human Rights and the United Nations Convention on the Rights with People with Disabilities. Daniel has a strong media presence as follows: LinkedIn: https://www.linkedin.com/in/daniel-holt-228161263/ Twitter: @daniel_p_holt. Instagram: daniel_p_holt1 Snapchat: danielpaulholt Youtube: https://www.youtube.com/@daniel_p_holt. TikTok: funnydisabledbarrister
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