Martin Downs represented the Local Authority, responding to an application by an elderly person (UF) who was in a care home and subject to a Deprivation of Liberty regime. UF’s daughter AF was her litigation friend.

Mr Justice Charles (who was appointed Vice President of the Court of Protection on 13 January 2014) has now handed down Judgment in Re UF [2013] EWHC 4289 (COP) dealing the with well known problems created by the Legal Aid Agency [LAA] and their approach to these cases and how to address problems with family members acting as litigation friends in circumstances in which there is a family dispute.

In this case, the Court of Protection [COP} had originally made its own orders under s.21A MCA authorizing a continuing Deprivation of Liberty following its practice in Re HA [2012] EWHC 1068 (COP) 28 February 2012. The response of the LAA had been to remove public funding for UF – in this they were acting on a change in the rules they had made on 1 April 2013. This change meant that there was no entitlement to non-means tested legal aid unless a standard authorisation was in place i.e. the LAA would remove legal aid if the Court were to follow its normal practice and make its own interim orders.

The question arose as to whether the Ministry of Justice and LAA had changed the funding regime in order to take these cases outside the terms of the scheme.

Additionally, there was the issue as to whether the change in practice of the Court would be seen as a contrivance against the scheme (and so be ineffective).

COP joined the Legal Aid Agency and the Ministry of Justice [MoJ]
Charles J concluded, “Both in evidence and in submission they [LAA & MoJ] have assured me that the thinking behind the change in the Regulations was not directed at my decision in Re HA. I accept that, but I have not found their explanations of the reasoning for the change easy to follow or convincing.”

New Practice of COP

Effectively, the COP has, as a result, changed its practice. MoJ and LAA have agreed that this is not a contrivance.

Where appropriate, COP will now (under s.21A) vary or continue an existing standard authorization.

Charles J decided that the powers of the Court did not extend to reviving an authorisation which had ended. In this case, the Local Authority agreed to make a further assessment and, if it granted a standard authorization, COP proposed to extend it. The authorisation given by the District Judge would continue in the meantime. Charles J also exercised his power to exclude the Local Authority from any liability arising from the grant of that standard authorisation.

Charles J considered that it was still preferable for the Court to satisfy itself as to what was the best regime and to take control of the interim position by exercising its powers under s.21A rather than simply leave matters to a Local Authority to continue standard authorisation of Deprivation of Liberty during the currency of s.21A proceedings.

As concerns litigation friends

The Judge was concerned that this was a case of family disharmony where family members did not agree about the treatment of their mother. One of the children (AF) wanted UF cared for at home. None of the other siblings agreed. AF had not attended the Best Interests meetings convened by the Local Authority.

Charles J made clear that AB v A Local Authority and The Care Manager of BCH [2011] EWHC 3151 (COP) is to be considered the leading case concerning the operation of Schedule A1, Part 10 of the MCA (Representatives appointed under the umbrella of the standard authorization).

However, he agreed that applications under s.21A can be made by a family member on their own behalf or on behalf of the person detained or by the representative appointed under Part 10. P (i.e. the person detained) and the representative do not need permission to bring the proceedings.

In this case, the DJ had appointed AF as litigation friend on an interim basis because the OS’s standard position is to require eight weeks to enable him to consider his position.

Charles J noted that the stance of the Official Solicitor in cases such as this which is normally to require: (i) an interim finding or evidence that the relevant person falls within the definition of “P” in Rule 6 of the Rules; (ii) confirmation of security for his legal costs; and (iii) confirmation it was a last resort case (i.e. that there is nobody else suitable and willing to act as litigation friend).

Mr Justice Charles found that his requirement for prima facie evidence of a lack of capacity to make the relevant decision, is not relevant where one is dealing with an application under s.21A.

Charles J discharged AF as litigation friend for UF pursuant to Rule 140 and the overriding objectives. He agreed that a family member could (albeit rarely) act as a litigation friend – even if there is a family dispute concerning P’s best interests but they would need to demonstrate that they could take a balanced and even-handed approach to the relevant issues. He added, “That is a difficult task for a member of the family who is emotionally involved in the issues that are disputed within the family and it seems to me an impossible task for AF to carry out in this case.”