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This section contains information about recent case law and reports from the Local Government and Social Care Ombudsman in relation to complaints made against local authorities. Click on the links below to view the relevant sections:

Case Law

Click here to view key Mental Capacity Law Cases (39 Essex Chambers) and  England and Wales Court of Protection Decisions (BAILII)

November 2021: Mental Capacity and Sexual Consent

The Court of Appeal has overturned a Court of Protection judgment which had concluded that JB had capacity to consent to sex, and that understanding the need for a sexual partner to give and maintain consent was not “relevant information” for the purposes of assessing capacity. The Court of Appeal found that people need to understand that partners must be able to give and maintain consent to be found to have capacity to engage in sex. See A Local Authority v JB.

September 2021: Ordinary Residence

On 22 March 2021, judgment was found in favour of Worcestershire County Council in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care (DHSC) and Swindon Borough Council (‘the Worcestershire case’). The Secretary of State lodged an application for leave to appeal in the Court of Appeal, and permission to appeal has been granted. Please read the latest from DHSC on this matter: DHSC’s Position on the Determination of Ordinary Residence Disputes Pending the Outcome of the Worcestershire Case, published in August 2021.

May 2021: Disabled people’s access to sex worker services

Care workers who help disabled people access sexual services are not breaking the law, the Court of Protection has ruled. Mr Justice Hayden said that a care plan to facilitate a man’s contact with a sex worker would not be contrary to section 39 of the Sexual Offences Act 2003.

January 2021: AMHP Assessments during the Pandemic

The High Court has ruled, Devon Partnership NHS Trust and Secretary of State for Health and Social Care NHS Commissioning Board, that it is unlawful for approved mental health professionals to use video assessments for applications to detain people under the Mental Health Act 1983. This overturns NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic.

January 2021: COVID-19 Vaccine in Best Interests

The Vice-President of the Court of Protection ruled, E and London Borough of Hammersmith and Fulham, that it is in the best interests of an 80-year-old care home resident with dementia and schizophrenia to receive the Covid-19 vaccination, despite her son’s objections

June 2020: Breach of Human Rights

The Court of Appeal overturned a previous court decision which breached the human rights of a disabled man, with mental capacity who was forcibly removed from his home and taken to hospital. The judgement, Mazhar v Birmingham Community Healthcare NHS Trust, includes lessons for social workers and legal advisors using inherent jurisdiction.

April 2020: Undertaking Assessments Remotely

P’s daughter applied to the court to achieve his discharge from a care home where he was residing and a declaration that it was in his best interest to return home with a package of care: BP v Surrey County Council & Anor [2020] EWCOP17

The application had arisen because of the decision of P’s care home to suspend all visits from family members because of the coronavirus pandemic. It was alleged those constrictions implemented by the care home constituted an unlawful interference with P’s Article 5 ( right to liberty) and Article 8 (right to family).

The Court ruled that P should remain at the care home and the outstanding capacity should be undertaken via Skype or Face time.

March 2020: Forced Marriage: Passport Order in relation to a Woman who had Capacity

Click on this link, Forced Marriage: Passport Order, to read the summary from Family Law Week about the Family Court consideration of a Forced Marriage Protection Order (FMPO) under the Family Law Act 1996, where the subject of the order is an adult who does not lack mental capacity, and Passport Orders as part of a FMPO.

Local Government and Social Care Ombudsman Reports

LGSCO reports are usually published some months after the decision date.

November 2021(decision date): The Local Government and Social Care Ombudsman has asked Northumberland County Council to reconsider how it supports a man with disabilities after its failings left him unable to go on holiday.

October 2021 (decision date): A woman was left malnourished and without the support she needed for her medical conditions because Gloucetershire County Council ignored professional advice, a Local Government and Social Care Ombudsman investigation found.

September 2020 (decision date): An elderly couple of 59 years were split up with little regard for their welfare by Royal Borough of Windsor and Maidenhead, the Local Government and Social Care Ombudsman has found.

November 2019 (decision date): The LGSCO found fault with Nottinghamshire County Council after a man with autism had to rely on his parents to part-fund his care when it cut his package without identifying a suitable alternative. This appeared to be for financial reasons. The LGSCO report criticised the Council for not reviewing the man’s care package for three years and for reducing it, due to the cost being above its standard rate.

November 2019 (decision date): The LGSCO heavily criticised Derbyshire County Council for not putting proper safeguarding measures in place for a woman in one of its care homes before she fell and died. The investigation found numerous missed opportunities to assess and try to prevent the woman’s pattern of falls. It criticised it for not doing enough to monitor her nutrition, hydration and low weight, which the inquest found was a factor in her death. It also found fault for not keeping accurate and up-to-date records of other allegations the woman and her family made about incidents in the home.

June 2019 (decision date): The LGSCO upheld Mrs X’s complaint that Essex Council refused to pay for one to one observations because she self-funded her care. Mrs X said the Council did not consult with her son or daughter before it put the observations in place, which were required as part of a safeguarding plan.

June 2019 (decision date): The LGSCO found that Bolton Council was at fault regarding lack of support Ms X received to recruit a personal assistant, and regarding an assessment by the Council which reduced her support by over 60%.

March 2019 (decision date): The LGSCO found that Staffordshire County Council had acted unlawfully when it decided not to carry out assessments of low and medium priority for Deprivation of Liberty Safeguards (DoLS) applications and significantly delayed assessing the remaining applications.

March 2019 (decision date): Mr F complained about the quality of home care provided by Reading Council’s care provider, Radis Group, to his late mother, Mrs B. In particular that the carers failed to call 999 when Mrs B was ill. The LGSCO made recommendations in relation to: training of carers in relation to emergency procedures and action when an adult is unwell; training of carers regarding record keeping; review of the Council’s complaints procedure; accuracy of safeguarding enquiry reports.

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