London Borough of Hillingdon v Neary

Monday 13 June 2011

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London Borough of Hillingdon v Steven Neary (by his litigation friend the Official Solicitor), Mark Neary and the Equality and Human Rights Commission[2011] EWHC 1377 (COP) (Peter Jackson J): Steven Neary is a 21 year-old man who has childhood autism and a severe learning disability. He lived with his father, Mark Neary, and received a care package from the London Borough of Hillingdon. At his father’s request, Steven was accommodated in respite care for six days to 5 January 2010. From that date until 23 December 2010 Hillingdon kept him in a support unit against his father’s wishes. On 15 April 2010 Hillingdon made a DOL authorisation. On 28 October 2010 Hillingdon referred the matter to the Court of Protection. The Court of Protection ordered that he return home to his father in December 2010. The Official Solicitor, acting on Steven’s behalf, sought a declaration that Hillingdon had acted unlawfully when it kept Steven in the support unit after 5 January 2010 by depriving him of his liberty and failing to respect his right to family life in breach of Articles 5 and 8. Peter Jackson J granted that declaration. He held that between 5 January – 23 December 2010 Hillingdon had unlawfully breached Steven’s right to respect for his family life and had unlawfully deprived him of his liberty, notwithstanding the DOL authorisation. He also declared that by failing to refer the matter to the Court of Protection sooner than 28 October 2010, failing to appoint an Independent Mental Capacity Advocate sooner than 29 October 2010 and failing to conduct an effective review of the DOL best interests assessment, Hillingdon had unlawfully deprived Steven of his entitlement to take proceeding for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5(4). The Judge mentioned three important practice issues: (1) significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection where decisions can be taken as a matter of urgency, and DOL authorisations should not be used by local authorities as a means of getting their own way on the question of whether it is in the person’s best interest to be in a particular place; (2) where local authorities wear a number of hats, such as social work support and running residential facilities, they should be clear about who is responsible for decisions and overall direction; (3) the responsibilities of local authorities as supervisory bodies for DOL authorisations require them to scrutinise assessments with independence and a degree of care appropriateness to the seriousness of the decision and the circumstances of the individual case, where authorisations are granted on the basis of perfunctory scrutiny of superficial best interests assessment, supervisory bodies cannot expect those authorisations to be legally valid. Click here for the transcript.The case has generated considerable media interest. For two newspaper reports click hereand here.

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