Somerset County Council was found to have unlawfully deprived P of her liberty for a period of thirteen months
Background to the case from Butler and Co, Solicitors - Read more
In May 2013, P’s mother went on holiday for two weeks, leaving her daughter in respite care funded by Somerset County Council.
The council decided to keep P in respite care following the discovery of bruising on her chest. In making this decision, the council relied on unsubstantiated allegations that the bruising had been caused within the home environment. They failed to take account of several other possible explanations, not least the fact that P had been observed hitting herself and that she had also taken a member of staff to ground whilst out on a school trip. Crucially, P herself was not given the opportunity to explain how the bruising had occurred
It was established that staff failed to properly investigate the evidence or communicate all the facts to the assessing medical staff.
The council had not put in place any procedure for the authorisation of Deprivation of Liberty – consequently there was no framework in place within which the mother could appeal to have her daughter returned when she returned from holiday. The mother was not informed that she could have appealed directly to the Court of Protection.
As a consequence, the mother was unable to mount a legal challenge and was not at that time eligible for legal aid. Butler & Co solicitors supported the mother on a pro bono basis through this difficult time. Eventually, after more than six months, in December 2013 the County Council brought court proceedings and the mother was finally, following a further application to the Court, able to apply for non means tested legal aid. During the court case, the mother successfully challenged the claim that that the bruising had been caused at home.
In delivering his judgment that the council had unlawfully deprived P of her liberty, His Honour Judge Marston criticised the council for its systemic failure; corporate failings and its misguided philosophies. The council continued to pursue an unsubstantiated case against the family, and unreasonably refused to drop allegations made against them.
Thirteen months after she was prevented from doing so, P finally returned home to live with her mother in June 2014.
Lessons to be learned – for local authorities
“This case has been described as one of the most serious cases of deprivation of liberty that the Court of Protection has had to deal with. Legal costs are not usually awarded in Court of Protection cases, and even less frequently on an indemnity basis where costs need only have been reasonably incurred and need not be proportionate. His Honour Judge Marston’s decision to award costs, on an indemnity basis, for this complex and lengthy case, is a landmark decision which has a punitive impact on the Local Authority following what was described as a “significant degree of unreasonableness” on their part. It will no doubt send a strong message to other councils not to repeat such a mistake.”
“The case highlights a clear lack of understanding on the part of the council into this crucial area of law and procedure, a lack of understanding which led to a vulnerable adult being deprived of her liberty and separated from her family.”
“Local authorities need to invest in better training and monitoring for their staff. Since the Cheshire West case, this has become a fast-moving area of law and staff in social services and legal teams need to keep up-to-date with developments on a regular basis.”
View Court of Protection judgement: Somerset County Council v MK & Anor [2015] EWCOP B1 (30 January 2015)