Fluctuating capacity – another judicial take

A judge has set out a way forward for the Court of Protection to grapple with the difficult issue of fluctuating capacity, writes Alex Ruck Keene. Read more
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  NEWS

Feb 13, 2020

Ombudsman warns councils over care home top-up fees

Councils have been warned by the Local Government and Social Care Ombudsman over the administration of ‘top-up fees’ under the Care Act for people contributing towards relatives’ care.
Feb 12, 2020

Equalities watchdog in legal action against Health Secretary over accommodation for people with learning disabilities and autism

The Equality and Human Rights Commission has launched a legal challenge against the Secretary of State for Health and Social Care over what it claims is a repeated failure to move people with learning disabilities and autism into appropriate accommodation.
Jan 23, 2020

Senior judge issues guidance on applications to Court of Protection concerning medical treatment

The Vice-President of the Court of Protection, Mr Justice Hayden, has issued guidance on applications to the court relating to medical treatment.
Jan 22, 2020

Ombudsman criticises council for reducing care package of autistic man because of financial pressures

The Local Government and Social Care Ombudsman has criticised a county council after a man with autism was left relying on his parents to part-fund his care when the local authority cut his package without identifying a suitable alternative.
Jan 22, 2020

Law Society warns of “catastrophic legal aid deserts” for community care work

Some 79% of local authority areas have no publicly funded legal advice for vulnerable people to challenge community care arrangements, the Law Society has claimed.
Jan 16, 2020

Judge criticises children's trust and clinical commissioning group over "wholesale failure of best interest decisions" for man with epilepsy

A judge has awarded costs against Birmingham Children’s Trust (BCT) and NHS Birmingham and Solihull Clinical Commissioning Group (CCG) after what he called their “wholesale failure” in a case of a young man with severe epilepsy.
Jan 16, 2020

Ombudsman criticises council for failing to properly involve complainant in assessment and support planning process

A council significantly delayed completing an assessment of a complainant's social care needs, failed to complete a support plan before reducing his personal budget and failed to properly involve him in the assessment and support planning process, the Local Government and Social Care Ombudsman has found.
Dec 31, 2019

Judge rules against council on meaning of 'needs' for Care Act assessment

An assessment carried out by a London borough did not constitute a discharge of its duties under the Care Act because it failed to include all the individual's needs, whether currently being met or not, a judge has ruled.
Dec 27, 2019

Council defeats High Court challenge over closure of day centre

Rotherham Metropolitan Borough Council has successfully defended a High Court challenge over its decision to close a day centre for adults with learning difficulties.
Dec 20, 2019

Queen's Speech lays out proposals for “long term reform of social care”, further devolution

Government plans to seek cross-party consensus “urgently” in order to bring forward the necessary proposals and legislation for long-term social care reform in England were among proposals unveiled in the Queen’s Speech yesterday, but concerns have been expressed that "we've heard it all before".

  FEATURES AND ANALYSIS

February 07, 2020

Cross-border cases and the inherent jurisdiction

A Court of Protection judge recently considered applications for welfare orders for a man in his sixties made by his children who had brought him back from Spain, against the wishes of his second wife. Sophy Miles analyses the outcome.
February 06, 2020

Local authority social care duties

The following Local Government guidance note, produced in partnership with Ros Ashcroft of DAC Beachcroft and Stephanie Townley of Addleshaw Goddard LLP provides comprehensive and up to date legal information covering local authority duties towards social care.
January 31, 2020

RPRs, attorneys, BIAs and legal aid

A Court of Protection judge recently considered the question of the appointment of a relevant person's representative (RPR) in the context of attorneyship. Alex Ruck Keene examines the outcome.
January 24, 2020

Complying with the MCA

A Court of Protection judge recently criticised a council for "chilling" failures to comply with the Mental Capacity Act. Sophy Miles explains why.
January 17, 2020

Adult safeguarding and the Anti-social behaviour, Crime and Policing Act 2014

Kevin Chan explains how his local authority recently used the Anti-social Behaviour, Crime and Policing Act 2014 to safeguard a vulnerable man from abuse using a civil injunction.
January 17, 2020

Prosecutions of local authorities by the Care Quality Commission

In December 2019, the Care Quality Commission brought its first prosecution against a local authority. Lorna Kenyon said the case demonstrates the importance of considering whether to admit or contest a prosecution at an early stage.
January 03, 2020

Case management and expert evidence

In a recent case the Vice-President of the Court of Protection made some important comments in relation to case management. The CoP team at 39 Essex Chambers reports.
December 13, 2019

Capacity, the inherent jurisdiction and self-neglect

A judge was recently asked to resolve a case where there was disagreement as to the jurisdictional basis upon which the Court of Protection was being invited to impose care on a man against his will as being in his best interests. The Court of Protection team at 39 Essex Chambers analyse the ruling.

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  MORE NEWS

Feb 13, 2020

Ombudsman warns councils over care home top-up fees

Councils have been warned by the Local Government and Social Care Ombudsman over the administration of ‘top-up fees’ under the Care Act for people contributing towards relatives’ care.
Feb 12, 2020

Equalities watchdog in legal action against Health Secretary over accommodation for people with learning disabilities and autism

The Equality and Human Rights Commission has launched a legal challenge against the Secretary of State for Health and Social Care over what it claims is a repeated failure to move people with learning disabilities and autism into appropriate accommodation.
Jan 23, 2020

Senior judge issues guidance on applications to Court of Protection concerning medical treatment

The Vice-President of the Court of Protection, Mr Justice Hayden, has issued guidance on applications to the court relating to medical treatment.
Jan 22, 2020

Ombudsman criticises council for reducing care package of autistic man because of financial pressures

The Local Government and Social Care Ombudsman has criticised a county council after a man with autism was left relying on his parents to part-fund his care when the local authority cut his package without identifying a suitable alternative.
Jan 22, 2020

Law Society warns of “catastrophic legal aid deserts” for community care work

Some 79% of local authority areas have no publicly funded legal advice for vulnerable people to challenge community care arrangements, the Law Society has claimed.
Jan 16, 2020

Judge criticises children's trust and clinical commissioning group over "wholesale failure of best interest decisions" for man with epilepsy

A judge has awarded costs against Birmingham Children’s Trust (BCT) and NHS Birmingham and Solihull Clinical Commissioning Group (CCG) after what he called their “wholesale failure” in a case of a young man with severe epilepsy.
Jan 16, 2020

Ombudsman criticises council for failing to properly involve complainant in assessment and support planning process

A council significantly delayed completing an assessment of a complainant's social care needs, failed to complete a support plan before reducing his personal budget and failed to properly involve him in the assessment and support planning process, the Local Government and Social Care Ombudsman has found.
Dec 31, 2019

Judge rules against council on meaning of 'needs' for Care Act assessment

An assessment carried out by a London borough did not constitute a discharge of its duties under the Care Act because it failed to include all the individual's needs, whether currently being met or not, a judge has ruled.
Dec 27, 2019

Council defeats High Court challenge over closure of day centre

Rotherham Metropolitan Borough Council has successfully defended a High Court challenge over its decision to close a day centre for adults with learning difficulties.
Dec 20, 2019

Queen's Speech lays out proposals for “long term reform of social care”, further devolution

Government plans to seek cross-party consensus “urgently” in order to bring forward the necessary proposals and legislation for long-term social care reform in England were among proposals unveiled in the Queen’s Speech yesterday, but concerns have been expressed that "we've heard it all before".
Dec 10, 2019

Council fined £500k after first prosecution by CQC over failure to provide safe care

Derbyshire County Council has been fined £500,000 following the first prosecution that the Care Quality Commission has brought against a local authority since the watchdog was given powers to prosecute health and social care providers for failing to provide safe care and treatment in 2015.
Dec 09, 2019

Former council worker sentenced for unlawfully obtaining personal data

A former social services support officer at Dorset County Council has been prosecuted for accessing social care records without authorisation.
Nov 22, 2019

Home Office reconsideration policy for victims of traffickiing unlawful, High Court judge rules

The High Court has ruled as unlawful a Home Office policy of allowing victims of trafficking seeking a reconsideration of a negative decision to approach it only through specified organisations.
Nov 21, 2019

Applications for DoLS by care homes and hospitals up 15% each year since 2014-15: report

The number of applications made by care homes and hospitals to local authorities under the Deprivation of Liberty Safeguards (DoLS) has increased by an average of 15.0% each year since 2014-15, official statistics from NHS Digital have revealed.
Oct 31, 2019

Ombudsman raps council for taking 21 months to reassess care needs of vulnerable woman

The Local Government and Social Care Ombudsman (LGO) has criticised a council for taking 21 months to carry out a reassessment of a vulnerable woman’s care needs.
Oct 30, 2019

Judge criticises council for breaching duty of disclosure when making streamlined application for authorisation of deprivation of liberty

A council has been criticised by a Court of Protection judge for breaching the duty of full and frank disclosure when it made an application under the streamlined procedure for authorisation of a deprivation of liberty.
Oct 24, 2019

High Court judge finds council was right to tell failed asylum seeker to obtain support from Home Office

The London Borough of Southwark acted correctly when it told a failed asylum seeker that he must apply to the Home Office for support.
Oct 24, 2019

Council defeats costs application in High Court case on vulnerable adult and inherent jurisdiction

Redcar and Cleveland Borough Council has successfully resisted an attempt to get a costs order against it by the parents of a vulnerable adult.
Oct 11, 2019

39 Essex Chambers publishes guidance for social workers on application of inherent jurisdiction of High Court to adults

39 Essex Chambers has published a guidance note for social workers and those working in front-line settings that provides an overview of the inherent jurisdiction of the High Court as it applies to adults.
Oct 11, 2019

Court of Appeal orders council to pay cost of attendance of young woman at weekly placement

The Court of Appeal has ruled that North East Lincolnshire Council should have paid the cost of a disabled young woman attending a weekly placement, overturning an earlier High Court decision.
Oct 10, 2019

Ombudsman raps council for failing to review care plan for five years, not adhering to statutory guidance

An investigation by the Local Government and Social Care Ombudsman has found a council at fault for not reviewing an autistic woman’s care plan for more than five years, and for not adhering to the most fundamental parts of the Care and Support Statutory Guidance.
Oct 03, 2019

Council right not to facilitate man with learning disabilities to have contact with sex workers, says judge

A Court of Protection judge has backed a local authority’s decision in not seeking to facilitate a man with learning disabilities’ contact with sex workers either in the UK or abroad.
Sep 27, 2019

High Court judge rejects application by council under inherent jurisdiction to prevent husband and wife living together

A High Court judge has given her reasoning why she would have rejected a local authority’s application for an injunction under the Court's inherent jurisdiction preventing a husband living in a property with his wife, had it not been withdrawn.
Sep 19, 2019

Ombudsman finds fault in two thirds of adult social care complaints investigated in 2018/19

The Local Government and Social Care Ombudsman found fault in nearly two out of every three adult social care complaints it investigated in 2018/19.
Sep 04, 2019

Ombudsman raps council over failure to complete agreed remedy

The Local Government and Social Care Ombudsman has criticised Staffordshire County Council for failing to apologise to a woman in good time following an earlier investigation.

  MORE FEATURES

November 08, 2019

Deprivation of liberty in the community – how not to apply to court

A recent case reads as an object lesson in how not to make an application to the Court of Protection to authorise deprivation of liberty, writes Alex Ruck Keene.
November 01, 2019

Social care support and persons subject to immigration control

The Administrative Court has revisited the issue of the denial of social care support to persons subject to immigration control, and the line between local authority social care support under the Care Act 2014, and accommodation and support provided by the Home Office. Jonathan Auburn analyses the ruling.
October 25, 2019

Fluctuating capacity: decisions on the management of diabetes

Hope Davis-McCallion examines how the Court of Protection approached deciding whether a woman had capacity to make decisions about the management of her diabetes. In Royal Borough of Greenwich v CDM [2019] EWCOP32, the court had to decide whether the assessment of capacity to make decisions about diabetic management is one macro-decision which encompasses all of the many micro-decisions that CDM…
October 18, 2019

The limits of the inherent jurisdiction (2)

The Court of Protection team at 39 Essex Chambers analyse the second in two rulings by Mr Justice Cobb on the inherent jurisdiction.
October 11, 2019

The limits of the inherent jurisdiction (1)

Mr Justice Cobb recently handed down two important decisions on the scope of the inherent jurisdiction at the border of the Mental Capacity Act 2005. In the first of two articles on these rulings, the Court of Protection team at 39 Essex Chambers examine a case concerning a young adult and the use of the inherent jurisdiction to authorise deprivations of liberty where there is no statutory…
September 26, 2019

Re D – the Supreme Court, 16/17 year olds and confinement

The Supreme Court has handed down a much-anticipated judgment on 16-17 year olds, deprivations of liberty and parental consent. Alex Ruck Keene explains the ruling and sets out some practical implications.
September 06, 2019

The extent of the inherent jurisdiction

Christine Cooper reports on an unusual inherent jurisdiction case that recently went before a High Court judge.
August 23, 2019

The MHA and the MCA in the community

The Court of Protection team at 39 Essex Chambers report on the outcome of a ruling dealing with streamlined Re X applications made by two local authorities.
August 16, 2019

Fluctuating capacity – micro vs macro decisions

Alex Ruck Keene looks at the lessons to be learned from the latest Court of Protection to address the issue of fluctuating capacity.
August 09, 2019

Costs and s21A applications

A judge recently rejected an application by the Official Solicitor for a London borough to pay its costs in proceedings under Section 21A of the Mental Capacity Act 2005. The Court of Protection team at 39 Essex Chambers analyse the judgment.
August 09, 2019

Court of Protection cases review

Aaqib Javed rounds up the latest Court of Protection cases including a ruling on the appointment of personal welfare deputies.
July 26, 2019

Entitlement to personal independence payments

The Supreme Court has this month considered an appeal over entitlement to Personal Independence Payments. Leon Glenister explains the ruling.
July 26, 2019

DoLS, inquests and Article 2 ECHR

Does a DoLS automatically engage Article 2 of the European Convention on Human Rights at inquest? Jessica Swift and Martin English examine the impact of a recent Divisional Court ruling.
July 19, 2019

Capacity and sexual relations – trying to make it personal

Alex Ruck Keene analyses the latest Court of Protection ruling on capacity and sexual relations.
July 05, 2019

Appointing personal welfare deputies

David Rees QC analyses an important Court of Protection decision on the appointment of personal welfare deputies.
June 28, 2019

Sex, social media and ‘silos’

The Court of Appeal has handed down an important ruling on capacity to make decisions on using social media, on consent to sexual relations, and where to reside. The Court of Protection team at 39 Essex Street report on the judgment.
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May 24, 2019

Liberty Protection Safeguards – a new frontier or further difficulties?

The Mental Capacity (Amendment) Act 2019 received Royal Assent earlier this month. Matthew Angus and Amanda Mead examine its key provisions and how they will affect local authorities, health bodies and other organisations.
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May 24, 2019

Dealing with abuse claims in a care setting

Julia Jones considers the careful balance that local authorities need to strike in cases of alleged abuse in a care setting.
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May 17, 2019

Capacity, pre-nuptial agreements and knowledge of your own assets

A recent Court of Protection ruling addressed the questions of capacity to marry, enter into a prenuptial agreement and also disclosure of the extent of assets managed by a property and affairs deputy. Alex Ruck-Keene analyses the judgment.
Justice from Old Bailey HB Editorial
April 18, 2019

A delicate line – litigation friends and P asserting litigation capacity

A Court of Protection judge recently heard an appeal against a ruling that a man lacked capacity to conduct proceedings. The CoP team at 39 Essex Chambers report on the outcome.