2010 10 Housing

Monday 1 November 2010

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Re MIG (Incapacitated Adult) and MEG (Incapacitated Minor), Surrey County Council v CA[2010] EWHC 785 (Fam) (Parker J): MIG (aged 18) is placed with a foster family. MEG (aged 17) is in a small residential home. They have moderate to severe learning disabilities. They are under continuous supervision and control and both lack capacity to make decisions about their care arrangements and residence. This case raised the question whether MIG and MEG were deprived of their liberty. The court held it has power under MCA to make orders depriving a 16-18 year old of liberty. It is possible for deprivation of liberty to occur in a domestic setting in a family home. The foster carer, though self-employed, was an agent of the local authority, and therefore any deprivation of liberty would be imputable to the state but there is no deprivation of liberty simply by virtue of placing someone in foster care or a care home who lacks capacity to consent. The judge held that neither MIG nor MEG is deprived of liberty in their current placements for a number of reasons (see paras 233-234 of the judgment). Click here for transcript.

R (Mwanza) v Greenwich LBC and another [2010] EWHC 1462 Admin (Hickinbottom J): the duty under section 117 of the Mental Health Act 1983 does not require the relevant authorities to provide a former patient with any and all services (e.g. accommodation, or employment opportunities) simply because those services do or may prevent deterioration or relapse of a mental condition requiring readmission. An after-care service must be a service that is necessary to meet a need arising from a person’s mental disorder (as distinguished from an ordinary need for accommodation or employment). In practice, the assessment of needs may give rise to difficult issues. However, it is for the relevant authorities to make their own assessment and reach their own decision about what needs a person has; they then have a wide discretion as to what if any services are required to meet such needs. In this particular case, the local authority had, in any event, lawfully discharged or terminated their responsibilities towards the Claimant under section 117 of the 1983 Act. Further, on the facts, there was no obligation to provide accommodation under section 21 of the National Assistance Act 1948: the test in R(M) v Slough [2008] UKHL 52, [2008] 1 WLR 1808 was not met. Click here for the transcript.

A Primary Care Trust v P, AH & A Local Authority [2009] EW Misc 10 (EWCOP) (Hedley J): P lacked capacity to decide where and with whom he should reside. The court held the removal of P from care at home, by AH, as a breach of Article 8 was only be proportionate if P’s best interests compellingly required it. It was in P's best interests to move to accommodation for independent living. The judge also held there would be a deprivation of liberty as a result of (i) the degree of control exercised by staff; (ii) constraint on P leaving if he intends to return to home care; (iii) the power to refuse a request form P’s care giver, AH, at home for P's return; (iv) the restraints and restrictions on contact with P; and (v) the degree of supervision and control. Click here for transcript.

G v E [2010] EWHC 621 (Fam) (Mr Justice Baker): G lacked capacity and was being deprived of his liberty at a residential care unit by the Local Authority. G’s Article 5 rights were breached by the Local Authority as they failed to seek DOLS authorisation or court order, and had breached G’s Article 8 rights including a failure properly to involve his carer. The court authorised continuing deprivation of liberty of G at the residential unit pending the final hearing as this was in his best interests. Also the court held there is no threshold condition for an order under s 16 of the Mental Capacity Act 2005 depriving someone of his liberty other than the protected person lacks the relevant capacity. Also the court noted DOL safeguards apply only to hospitals and care homes. Evidence from the manager of the unit was that the unit was not a care home because it did not provide accommodation as the residents sign a tenancy agreement. The tenancy agreement with E was a nullity as he did not have capacity to enter into it, E had no right to exclusive possession and thus there was no tenancy at all. Se also G v E, Manchester City Council and F [2010] EWHC 2042 (Fam) and G v E [2010] EWCA Civ 822. Click here for transcript of first instance decision. Click here for Court of Appeal decision.

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