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Damages under HRA 1998 for loss of conjugal relations during delay in implementing proposed sex education

8 September 2017, by Bethan Harris

CapacityCourt of Protection

Bethan Harris

CH (by his litigation friend, the Official Solicitor) v A Metropolitan Council [2017] EWCOP 12, Sir Mark Hedley sitting as  Judge of the Court of Protection, 28 July 2017

CH brought a claim for damages under the Human Rights Act 1998 arising out of the delay by the local authority in providing him with sex education to enable him to gain capacity to have sexual relations.

CH suffered from Downs Syndrome and learning difficulty. He was married to WH. When assessed by a psychologist it was concluded that he lacked capacity to consent to sexual relations. WH was advised she must abstain from sexual relations and she moved into a separate bedroom. The local authority delayed in providing the course of sex education that CH needed to achieve the necessary capacity for reasons which the court held were not satisfactorily explained. Proceedings were instituted by CH’s sister in the Court of Protection and the programme of education was delivered resulting in CH gaining capacity and resuming a normal conjugal relationship.

A letter before action was sent to the local authority in compliance with the guidance in H v Northamptonshire CC [2017] EWHC 282 (Fam) paragraph 117. The actionable delay was 12 months. The claim was brought as a CPR Part 8 Claim pursuant to Luton v SW [2017] EWHC 450 (Fam). The Court of Protection had power to approve a settlement (YA(F) v A Local Authority [2010] EWHC 2770) under CPR 21.10.

The local authority did not contest liability. It had agreed to pay CH’s costs in the Court of Protection which meant that costs would not be recouped out of the damages under s 25 LASPO Act 2012.

A settlement consisting of the local authority’s apology for the delay, payment of the costs of the Part 8 proceedings and damages of £10,000 was approved.

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