State of play: case summaries

Deprivation of liberty - Essex CC v RF

CP was 91 years old and suffered from dementia and physical health problems. His friends believed it was in his best interests to stay in his home of 50 years, but his family thought he should be moved to a care home.

One of CP’s friends then alerted Essex County Council to CP’s vulnerability to exploitation. A social worker conducted a capacity assessment and concluded he lacked capacity to make decisions about care and residence, removing him from his home to a secure dementia unit.

The circumstances of the removal were disputed, with Essex claiming that he left voluntarily, despite the substantial evidence of CP’s distress and reluctance to leave his home.

An urgent DOLS authorisation was not put in place until eight weeks later, a standard authorisation was not put in place until a week later and furthermore, it was not renewed when it expired 16 weeks later.

CP’s capacity to make decisions regarding his residence was assessed on various occasions, with varying conclusions being reached. After a year had passed, all parties accepted that CP lacked capacity to make decisions regarding his residence and care.

An independent specialist had reported that it was in CP’s best interests to be allowed to return home with a 24 hour care package. Following acceptance by Essex, the court made interim declarations accordingly. A month later, the court made final declarations that CP lacked capacity to make decisions regarding his residence and care, but retained capacity regarding contact.

The parties then reached a compromise agreement in respect of the damages to be awarded to CP, for the breach of his right to liberty and his right to respect for private and family life. The court was required to consider the agreement and approve it, if appropriate.

The terms of the agreement were: (i) a declaration that CP had been unlawfully deprived of his liberty during the periods when no authorisation was in place; (ii) Essex to pay £60,000 damages to CP; (iii) Essex to waive CP’s care home fees; (iv) Essex to exclude the award of damages from means testing; and (v) Essex to pay all CP’s costs.

The judge expressed his concern at the circumstances of CP’s removal from his home, particularly the lack of consideration given to the less restrictive option of supporting CP at home in accordance with his wishes. If one of the reasons for removing CP was the concern that he was at risk from financial abuse, then CP’s removal was not a reasonable and proportionate solution to the problem and, instead, action should have been taken against the perpetrator.

The judge concluded that, inter alia, Essex had failed to heed the presumption in favour of CP’s capacity; had failed to act upon CP’s consistently expressed wish to return home; and had failed to refer the matter to the court.

Essex’s omissions amounted to a substantive breach of CP’s rights. Taking into account the cases of London Borough of Hillingdon v Neary [2011] EWHC 3522 and The Local Authority and Mrs D [2013] EWCOP B34, the level of damages for unlawful deprivation of liberty was between £3,000 and £4,000 per month.

The compromise agreement placed the level of damages at between £3,500 and £4,600 per month. In the circumstances, the judge approved the compromise agreement.

This case provides useful guidance as to the level of compensation which will be awarded in cases of deprivation of liberty.

See Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1

 

Power of attorney

RG Public Guardian v PB and JW

This case involves an application for the partial revocation of an enduring power of attorney (EPA). RG's wife had two children from her first marriage who were the attorneys; a son, PB, and a daughter, JW. JW had fallen out with both her parents, as well as PB.

In March 2006, RG made an EPA in which he appointed his wife, as well as PB and JW, jointly and severally to be his attorneys. Soon thereafter, RG was diagnosed with frontotemporal dementia.

Two years later, RG's wife died and PB applied to the Office of the Public Guardian (OPG) to register RG's EPA, but excluded JW from acting as attorney due to their poor relationship. JW raised concerns with the OPG about her brother's management of RG's finances. An Order was made on 23 May 2011, ordering PB to retain accountants to draw up annual accounts in respect of RG's finances, however two years later, is was clear that PB had not done so.

The Public Guardian sought a further order, directing PB to supply accounts within 28 days and, if he failed to do so, that the court revoke his appointment as an attorney, leaving JW as the sole attorney.

The OPG supplied a witness statement, which referred, inter alia, to: (i) outstanding care home fees; (ii) PB's intermingling of RG's funds with his own monies; (iii) a credit card debt which PB had incurred in RG's name; and (iv) the mortgage on the family home was being paid for from RG's funds. The order was granted.

PB applied to the court to reconsider the order. As RG's health deteriorated, he had cared for him 24/7, until he could no longer cope and RG moved into a care home.

Senior Judge Lush reviewed the law relating to the revocation of an EPA, including earlier case law on the unsuitability of an attorney in the context of sibling disputes, confirming the Public Guardian's challenge against PB's competence as an attorney. PB had contravened his authority and had failed to act in RG's best interests; even though PB was an affectionate and attentive stepson, he had been a hopeless attorney.

As RG and his wife had excluded JW from taking any benefit under their will, SJ Lush confessed to having reservations regarding JW acting as the sole attorney.

SJ Lush upheld the original order limiting the registration of the EPA to JW acting as a sole attorney, although stressed JW confer with PB when making future financial decisions on behalf of RG. This solution was a less restrictive alternative to the appointment of a deputy, it respected the wishes of RG, and there was no evidence to suggest that JW would not act in accordance with RG's interests.

This case emphasises the importance of financial attorneys complying with all the rules regarding the appropriate management of the donor's estate, even if they are also providing the donor with extensive personal welfare support.

See RG Public Guardian v PB and JW [2015] EWCOP 2

 

Vulnerable client

Re DD

This case concerned the Court of Protection intervening to authorise a sterilisation (or other long term contraceptive treatment) for an adult who appeared to lack the capacity to consent to the sterilisation herself.

The principal issues were whether the person actually lacked capacity, and whether performing the proposed life-changing treatment would be in her best interests.

DD is a 36-year-old woman with autistic spectrum disorder, and a mild to borderline learning disability. She has six children aged between 6 months and 12 years, all of whom have been removed from her care and are being raised by permanent substitute carers.

DD has no continuing contact with any of her children and has never demonstrated the desire or capacity, to engage with the level of support needed to allow her to care for them safely herself. She is in a long-term relationship with BC, who has a significant learning disability and displays some traits of autistic spectrum disorder.

DD's obstetric history was described as complex and tragic, and it was agreed that DD would almost certainly seek to conceal any future pregnancy, at grave risk to herself and the baby.

She had become increasingly resistant to any professional or medical help, or intervention during and since the pregnancy of her sixth child. As a result, an application was made for authorisation to deprive DD of her liberty, and use restraint to perform a sterilisation or to insert a long term contraceptive device.

In assessing DD's capacity, the court applied section 3 of the Mental Capacity Act 2005, notably the fourfold 'functionality' test focusing on DD's abilities to: (i) understand the information relevant to her decision; (ii) retain that information; (iii) use or weigh that information as part of the process of making the decision; and (iv) communicate her decision.

The court concluded that notwithstanding the considerable efforts which had been made to help DD to make the relevant decisions (all 'practicable steps' had been taken), she lacked capacity to make decisions about contraception and sterilisation.

In particular, DD showed no ability to weigh the information provided to judge the pros and cons of contraceptive options. She also lacked capacity to litigate.

In reaching a decision on the issue of what would be in DD's best interests, the court applied section 4 of the Mental Capacity Act 2005, and considered "all the relevant circumstances", including the risks (to a baby and DD) of future pregnancies, the suitability of less restrictive options, human rights arguments and DD's wishes and feelings.

The court was satisfied that a further pregnancy would be a significantly life-threatening event for DD.

Having weighed the relevant considerations of the extremely complex and important issues involved, the court concluded that it was in DD's best interests that she was sterilised, and that this should be achieved by laparoscopic procedure under general anaesthetic.

Furthermore it permitted forced entry into DD's home, and the withholding of the date of the procedure from her and her partner.

See Re DD [2015] EWCOP 4 (Fam)

 

Trusts

Fielden v Christie-Miller

This case concerned proprietary estoppel and the principles governing discretionary trusts in the context of two trusts related to a large landed estate in Oxfordshire.

One of the beneficiaries (Stephen) and his family had been living in one of the estate's properties (the property) since 1996, at the invitation of the principal beneficiaries and owners of the estate (John and Kathleen Christie-Miller).

The property formed part of the trust fund of a discretionary trust, of which Stephen was one of the class of beneficiaries. In March 2007, the trustees executed a deed of appointment, granting Sam (another discretionary beneficiary of the trust) a life interest in the fund, an assured tenancy of the property to Stephen at a market rent.

Sam and Stephen were in dispute as to the meaning and effect of that deed.

As part of the proceedings, Stephen brought a proprietary estoppel claim against Sam and the trustees. He claimed he had been told by one or more of the trustees that he would inherit the property, and that he had relied on these promises to his detriment.

The trustees therefore were estopped from exercising any power of appointment conferred on them by the trust, to reduce or cut down Stephen's entitlement to the property.

The trustees argued that for the alleged representation or assurance to be effective, it must have been unanimous and that promises made by one or more of them, but not the others, did not meet this requirement.

The trustees also argued that an estoppel would interfere with the principle that they could not fetter their discretion when they came to exercise their power of appointment in the future. The trustees sought to strike out Stephen's proprietary estoppel counterclaim on these two points.

This application to strike out or obtain summary judgement was refused.

Sir William Blackburne held that the unanimity principle operates so that a representation by one of several trustees cannot bind the other trustees without their knowledge or agreement.

It is not sufficient for a claimant to assert estoppel purely on the basis that he had believed one trustee had the necessary authority, and the unanimity principle would defeat the estoppel in this case.

However the judge held that the non-fettering principle did not operate as a complete defence to bar the beneficiary's proprietary estoppel claim. This is because this argument would otherwise prevent such a claim from ever being brought against discretionary trustees.

A person conducting his affairs in good faith, but in a way that caused him detriment on the basis of a representation by trustees, could potentially be left without any remedy, purely because the person giving the representation was a discretionary trustee rather than the outright legal and beneficial owner.

If the ingredients of the estoppel which a claimant asserts are otherwise established, he should not be barred from bringing a claim on this basis alone.

See Fielden v Christie-Miller & Ors [2015] EWHC 87 (Ch)

 

Jennifer Ridgway is an associate in the private client team at Michelmores

Karen Bayley is a solicitor at Barlow Robbins

Jennifer and Karen write regular case updates for Private Client Adviser