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:
For summaries of key mental capacity and Court of Protection decisions, see: Mental Capacity Law Cases (39 Essex Chambers) and England and Wales Court of Protection Decisions (BAILII)
December 2024: Mental Capacity Assessments for Deaf People
Oldham Metropolitan Borough Council v KZ & Ors [2024] EWCOP 72 (T3)
This Court of Protection ruling concerns a 20 year old man who had previously been assessed as lacking mental capacity for a wide range of decisions. These mental capacity assessments had been completed by a number of different professionals including a consultant psychiatrist. However, following the appointment of a different consultant who had specialist skills and knowledge of working with deaf people and the use of robust practical steps, it was assessed that KZ did have the mental capacity to make all decisions and the judge agreed.
The judge stated:
“As regards wider issues concerning the assessment of mental capacity of deaf individuals,….. the use of a non-specialist expert is not an appropriate substitute for the specialist assessment and risks incorrect conclusions regarding capacity being reached. Where an assessment is required the following considerations should guide any assessment of a deaf individual fluent in BSL:
(1) Any mental capacity assessment of a deaf individual fluent in BSL should ideally be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL. If that is not done, there should be a clear explanation why and what measures, if any, are proposed to be in place to manage that gap.
(2) The assessor should ideally have a background in understanding deafness and engaging with the deaf community. If they don’t, there should be a clear explanation why they are undertaking the assessment without such knowledge.”
March 2024: Safeguarding Adults and the Inherent Jurisdiction
Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam)
This Court of Protection judgment shows how the inherent jurisdiction can be used on a long-term basis to safeguard adults at risk of abuse or neglect. The case considered the most appropriate way of protecting an elderly woman (FH) from her husband (MH) of over 60 years. FH had complex health needs (including Alzheimer’s disease) and lived in a care home. However, she was assessed as having mental capacity to make decisions, meaning that the Mental Capacity Act 2005 could not be used and instead the Inherent Jurisdiction was applied.
The judge stated: ‘I have no doubt at all about the love which FH has for MH, and MH for his wife, but MH’s aggressive conduct as observed by professionals and care staff, his ungoverned temper at times, his interference with the proper provision of care for FH in the care home, render the making of injunctive orders necessary in FM’s best interests.’
Using the Inherent Jurisdiction, the judge made an order which prevented them from living together and ensuring that any contact between was supervised.
August 2023: Ordinary Residence
R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31
The Supreme Court overturned the Court of Appeal findings that first and originating local authority Worcestershire County Council had a duty to provide aftercare services rather than the second or host local authority Swindon Borough Council for an adult who had been re-detained in Swindon. The Supreme Court determined that after the person’s second discharge, Swindon had a duty to provide aftercare services, not Worcestershire. The case turned on whether the person, ‘JG’, had been “ordinarily resident…immediately before being detained” for the purposes of s 117(3)(a) of the MHA.
Worcestershire successfully argued that Swindon owed a duty to provide aftercare services, at the time of the second discharge, because the person had been ordinarily resident in Swindon immediately before the second detention. It was concluded where there had been more than one period of detention, the words ‘immediately before being detained’ must refer to the most recent period of detention. The Supreme Court found that although the person lacked mental capacity to decide where to live, the decision to live in Swindon was still made voluntarily “because it was the result of a choice made by those with the power to make decisions on their behalf.” The person’s residence in Swindon was also adopted for settled purposes, therefore, they were ordinarily resident in Swindon before their second detention on its plain meaning.
July 2022: Care Act Interpretation
A council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” interpretation of the Care Act 2014. The Court of Appeal rejected an appeal brought by Suffolk County Council against a High Court ruling last year that quashed its 2020 decision ending funding for the holidays for the men.
March 2022: Deprivation of Liberty Safeguards
A man, who has autism, was unlawfully deprived of his liberty in a care home for seven years by Lancashire Council. The Council admitted breaching his human rights and agreed a £200,000 settlement and a payment of £155,000 for a deputy to manage his property and affairs on his behalf. This was approved by the High Court.
November 2021: Mental Capacity and Sexual Consent
JB appealed the Court of Appeal decision that he lacked capacity to engage in sexual relations, but his appeal was dismissed. The Supreme Court dismissed the appeal and found that ‘Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Under section 3(1)(a) MCA, JB should be able to understand that information and under section 3(1)(c) MCA he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) MCA on the available information, JB is unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind’. The matter was remitted to a different Judge in the Court of Protection to determine the issue of capacity to engage in sexual relations as new information was available. For more details, see A Local Authority v JB.
LGSCO reports are usually published some months after the decision date.
July 2024: People Not Structures: Putting People at the Heart of Integrated Care
This report from the LGSCO and the Parliamentary and Health Service Ombudsman stresses the importance of focusing on the experience of people using services and prioritising joined up communication and activity that puts those people first in a ‘person first approach’.
February 2023: Good Record Keeping: Guide for Care Providers
This report shares the learning from LGSCO investigations highlighting examples of poor practice and summarises guidance on record-keeping by care providers.
This report shares the learning from LGSCO investigations to help councils, and other local services, meet their legal duties to ensure everyone has an equal opportunity to access their services, whatever their needs. The report identifies a number of positive steps councils can make to improve services, including reviewing staff training needs around the Equality Act 2010, incorporating Equality Act duties in contracts when commissioning services from external suppliers, and retaining alternative contact methods for people with alternative needs when moving services online.
