Deprivation of liberty, court review and costs

The Court of Protection team at 39 Essex Chambers look at the costs outcome where a local authority was late to apply for a review of a deprivation of liberty.

The judgment in LB Harrow and AT & DT [2017] EWCOP 37 (Senior Judge Hilder) [1] was handed down on 14 May 2018, but only appeared on Bailii some months thereafter. It relates to proceedings that were issued to seek court authorisation of the deprivation of liberty of a man called AT (it is not entirely clear whether this was because the arrangements for AT were being carried out in the community).

An authorisation was given by the court in 2016 with a requirement for the local authority to apply for a review no later than 12 months later. The matter was not however returned to the court by the local authority for more than 15 months and even then, the application made was not for a review.

The Official Solicitor brought an application for his costs to be paid by the local authority on the basis that:

(i) the local authority had been late in returning the matter to court in circumstances where the family had been raising concerns about the placement for almost a year.

(ii) having brought the matter before the court, it failed to ask for a review of the deprivation of liberty, and no evidence was filed.

(iii) The local authority then failed to serve the case papers on the Official Solicitor as required by the court, leading to a directions hearing having to be vacated.

(iv) the local authority had acted unreasonably in failing to agree the terms of a court order following a hearing and had tried to re-open issues that had been determined at the hearing by the judge.

HHJ Hilder held that (i) a failure to apply for a review of the DOLS authorisation within the requisite period and (ii) (having belatedly made an application) making the wrong application, were sufficient reasons to depart from the general rule as to costs in welfare costs of no order being made. She considered that the explanations for the failures – namely human error and ‘holiday season’ – were wholly inadequate. HHJ Hilder further held that the conduct of the local authority in failing to serve case papers in a timely manner, and then its approach to finalising an order did have a negative effect on the efficiency of the proceedings. She ordered that the local authority should pay half of the Official Solicitor’s costs.

Comment

The most significant aspect of this judgment is what the Senior Judge had to say about public bodies failing to bring cases back to the court for review of orders authorising deprivation of liberty in a timely fashion. She rightly emphasised that the purpose of the review requirement is to provide procedural safeguards against arbitrary deprivation of liberty and so avoid a violation of the State’s positive obligation under the ECHR, and that the failure to apply for a review seriously undermines the effectiveness of any safeguards. Of significance is the sentence “Such conduct on the part of a public body cannot be overlooked.” This is particularly significant given the (growing) number of cases where public bodies are reliant upon a court order to render lawful a deprivation of liberty for which they are directly and indirectly responsible. It is likely that this case is going to be relied upon in future to justify departures from the general rule where those public bodies have not taken timely steps to ensure that those orders are reviewed.

This article was written by the Court of Protection team at 39 Essex Chambers.

[1] Note, it would appear that the [2017] citation is incorrect, as it is clear that the judgment was handed down on 14 May 2018.