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.
The case of BP v LB Harrow  EWCOP 20 was a s.21A MCA 2005 application made on behalf of “P” who objected to being in a care home. He wanted to return to the family home, where his wife lived. His family were opposed to his return home but declined to become parties to the application or to make any formal statement to the Court.
On behalf of BP, the Official Solicitor eventually sought a trial period at home: this was on the basis that a standard authorisation had imposed a condition that such a trial be conducted but the condition had not been complied with and because BP wanted to return home.
The local authority consistently opposed a trial at home, until the morning of the first day of the 2-day final hearing. The local authority had maintained that opposition at a round table meeting in August 2018.
As a result of the local authority’s offer of a trial period at home, the final hearing was adjourned, the trial at home took place, and it resulted in P being returned to the care home within a relatively short time. Final orders were agreed that it was in P’s best interests to remain at the care home. On behalf of BP, the Official Solicitor sought an order that the local authority pay the costs of the final hearing claimed in the region of just over £10,000 excluding VAT.
The Judge held that there had been no new information and no change of position between the local authority’s refusal to agree to a trial period at home during the round table meeting three weeks before the hearing, and their offer to facilitate a trial period at home on the morning of the first day of the trial.
DJ Ellington’s approach to the costs application was to conclude that the conduct of the local authority did not to the necessary degree “represent a blatant disregard of the processes of the Act and the Respondent’s obligation to respect BP’s rights under ECHR as in [Manchester City Council v. G, E and F  EWHC 3385]” (paragraph 40). She therefore made no order as to costs, although she noted that breach of a condition of a standard authorisation would be relevant pre-action conduct for the purposes of CoP Procedure Rules 19.5(2) in relation to costs:
…the standard authorisation granted in November 2017 was subject to a condition that the Managing Authority was to work with social services and BP’s family to arrange trial periods at home. No trial period at home was arranged. This would be relevant pre-action conduct for the purposes of Rule 19.5 (2).
The decision not to award costs against the local authority is somewhat surprising. The judge had pointed out during the judgment that the January 2019 hearing was the second two day hearing in this matter which had not been effective. Thus the court had allocated four days of court time to this case which had not been used. Given the pressure on the Court of Protection, there is a real need for parties to come to early decisions about cases that can be compromised so as to free the courts up for those cases that need judicial intervention. There will of course always be those cases which cannot be compromised until the last minute because new evidence/information is still emerging, but this was not such a case. The local authority appears to have simply changed its mind at the very last minute.
It seems to us that the Court could have come to the opposite conclusion on the facts of this case given the duty on the court to give effect to the overriding objective (see COP Rules 2017 rule 1.1 which includes dealing with cases justly and at proportionate costs which means saving expense and allotting to each case the appropriate share of the court’s resources having regard to the need to allot resources to other cases).
This article was written by the Court of Protection team at 39 Essex Chambers. It draws in part upon a report prepared by Sian Davies.