Council hit with costs order after Court of Protection judge finds it failed autistic 18 year old

A Court of Protection judge has ordered Shropshire Council to pay the costs of the Official Solicitor and a father after finding that the local authority had failed an 18 year old man (ND) with a diagnosis of autism spectrum disorder.

The background to the case of ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42 was that in May 2018 Shropshire had made an application for care orders in respect of ND and his five sisters.

Just prior to the issue of these applications, the mother had left the jurisdiction to live with the girls in Poland. They remain there.

On 9 and 10 April 2019 Mr Justice Keehan transferred the public law proceedings in respect of ND to the Court of Protection, and discharged the interim care order on the basis that the father agreed to ND being accommodated by the local authority.

Later that month the judge made a declaration that ND was a vulnerable young person and was satisfied that protective relief under the High Court's inherent jurisdiction was necessary in the interim pending expert evidence being obtained on the issue of ND's capacity to make decisions in the relevant areas.

In a second court report of 9 December 2019 a consultant psychiatrist, Dr Rippon, instructed to assess ND’s capacity, concluded that he had capacity in all the areas assessed including the capacity to conduct the proceedings. The judge made a series of declarations to that effect on 17 December.

At a hearing on 3 August 2020 the Official Solicitor invited the court to declare that the local authority had acted unlawfully.

Mr Justice Keehan said he was satisfied that the facts of the case warranted and justified him making the declarations sought. These were that Shropshire had acted unlawfully by:

1. failing to provide ND with a choate pathway plan in accordance with its duties to ND as a relevant and now former relevant child under section 23 of the Children Act 1989;
2. failing to provide ND with a choate care and support plan in accordance with its duties under section 25 of the Care Act 2014 (to include identification of suitable accommodation) and court order; and
3. failing to support ND having regard to its statutory duties under the Children Act 1989 and the Care Act 2014, which caused ND to feel unsupported and reinforced his poor view of the local authority and resulted in ND being reluctant to engage with all professionals or seeking support should the need arise.

The judge said he would make the three primary declarations sought by the Official Solicitor for the following reasons:

i) Between June and December 2019, it was necessary for him to grant five extensions to the deadline for the local authority's final evidence, due to a series of non-compliance;

ii) During that period, the local authority had submitted plans on a number of occasions, however it became a recurring theme that the evidence submitted was not fit for purpose. “On one occasion, the local authority sought my 'advice and guidance' on the steps to be taken. I agree with the submission made on behalf of the Official Solicitor, that the court is not an 'advice centre'.”

iii) He accepted the submission of the Official Solicitor that a hearing on 17th December 2019 could have been avoided had the local authority complied with court orders;

iv) He had in mind the words of then President, Sir James Munby, as well as his own words, in the case law cited by the Official Solicitor highlighting the importance of compliance with directions;

v) He was also persuaded by the case of R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin) that the difficulties in ND's behaviour and his failure consistently to engage positively with the social workers did not justify or excuse the failures of the local authority referred to above; and

vi) whilst there may be occasions when a local authority is faced with difficulties and does all that it can to make progress, but to no avail, the difficulties faced by the local authority in this case were not sufficiently cogent reasons for their failure to have progressed the matter in a more satisfactory and timely manner.

The judge said he did not consider a full fact-hearing was required. “Given the clear pattern of non-compliance by the local authority, which I do not consider to be justified, I am content to make the declarations sought based upon what is already known. In particular, I am able to rely upon the recitals made in my previous orders, which document the local authority's repeated failure to comply with the court's directions.”

Departing from the usual rule on costs, namely an order for no costs should be made, Mr Justice Keehan said he was also satisfied that he should make a costs order against Shropshire in favour of the Official Solicitor and the Third Respondent occasioned by hearings on 17 December 2019 and 3 August 2020.

The judge concluded: “For the avoidance of any doubt, I recognise the very real challenges presented by ND and his father in working with the social workers on the ground. I do not doubt the professionalism and dedication of the social workers allocated to this case. Nevertheless, for a concatenation of reasons, ND was failed by this local authority.”