A council has been forced to pay exceptional legal costs in relation to a case in which it unlawfully deprived a woman of her liberty for 13 months following a ‘bungled’ safeguarding investigation.
The publication of the judgement on costs against Somerset County Council comes a year after a scathing judgement in which a judge said it had shown “a blatant disregard of the process of the Mental Capacity Act”.
In his original judgement in Somerset v MK [2014], Judge Nicholas Marston found the council multiply breached the human rights of a learning disabled woman, MK, after she was prevented from returning home from a respite placement in May 2013 when bruising was found on her chest.
While a paediatrician’s report had found that it was highly likely the bruising was inflicted by someone or something other than herself, this was based on incomplete information. The judge found that a proper safeguarding investigation would have concluded there was not sufficient evidence she was at risk from going home and she should have been returned to her family.
Unlawful deprivation of liberty
In the event she was deprived of her liberty without authorisation in the placement until November 2013, when a Deprivation of Liberty Safeguards (Dols) authorisation was secured for her placement in another residential setting. However, Judge Marston found that MK remained unlawfully detained until June 2014, when he heard her case, because the council had used the Dols scheme as a way of getting its own way on MK’s best interests.
While the council eventually dropped its case in relation to the bruising, it continued to say that MK should not return home in her best interests, raising concerns about her family’s ability to care for her. But these were strongly rejected by the judge in the original case and MK returned home.
Following the original case, which was initiated by Somerset to seek a ruling on MK’s best interests, the judge then heard an application in October 2014 for the council to pay the court costs of MK, her mother, known as M, father (F) and maternal grandmother (MG).
The Court of Protection Rules, which govern the court’s work, state that costs should generally not be imposed in personal welfare cases,
‘A significant degree of unreasonableness’
But Judge Marston found that the council’s conduct before and during the the original nine-day court hearing last summer involved “a significant degree of unreasonableness”.
He ruled not only that costs should be imposed on Somerset, but took the even rarer step of imposing these on an “indemnity basis”. A standards cost order limits costs to those that were reasonably incurred and proportionate to the issues at stake while an indemnity order removes the requirement for costs to be proportionate.
The value of the costs was not disclosed in the judgement, which was handed down in January but was only published this week.
Disregard for and ignorance of the Mental Capacity Act
MK had lived with her family from birth until last May 2013, when she started a two-week respite placement while her mother went on holiday. After respite staff found bruising to her chest, the council initiated a safeguarding investigation.
On the basis of a paediatrician’s report, a strategy meeting had found it highly likely the injury was inflicted by someone or something other than herself. On that basis, the council said MK would not be returning home; a capacity assessment had found that P lacked the capacity to decide whether to return home.
However, the paediatrician’s report had been made without the knowledge that, three days before starting the respite placement, MK had been seen hitting herself on the sternum by school teachers.
Judge Marston found that, had council social workers undertaken a “proper investigation” they would have concluded that “no or no sufficient evidence existed to be able to conclude that P’s safety was at risk by returning her home”.
The judge was scathing about the practice of the social workers involved, saying they “did not just disregard the process of the Mental Capacity Act, they did not know what the process was, and no one higher up the structure seems to have advised them correctly about it”. Read more about the original judgement.
Costs orders rare in Court of Protection cases
Under section 55 of the Mental Capacity Act 2005, costs are at the Court of Protection’s discretion, subject to the Court of Protection Rules 2007, rule 157 of which states that the general rule is that there will be no costs orders in relation to welfare proceedings.
However, rule 159 states that the court may depart from this general rule if the circumstances justify, having regard to factors including the conduct of the parties before and during proceedings, whether a party had succeeded in any part of their case and the role of any public body involved.
It was on this basis that the judge imposed costs on Somerset. Specifically he found that:
- The whole basis upon which the council acted in removing MK from her home – that she was at risk there – was wrong and this error could have been easily discovered by social workers had they carried out a proper safeguarding investigation in May 2013. In March 2014, the council in effect conceded that it was wrong by withdrawing from seeking a ruling about what had caused the bruising.
- The local authority’s conduct had detrimentally affected MK and her family because of the “bungled” safeguarding investigation.
- Somerset asked the court to rule on an extensive number of issues, many raising concerns about the family, to support its case that MK should not return home, and lost on virtually every one.
‘Don’t be afraid to challenge social workers’
Catrin Blake, of Butler & Co Solicitors, who represented MK’s mother, said: “The way the local authority insisted on continuing to seek findings against the family or claim that the family could not meet MK’s needs, despite evidence to the contrary meant that we were able to argue that they had acted unreasonably.”
She added: “Parents and family members must not be afraid to challenge what is said by social workers. The adult social care system is incredibly stretched and mistakes do happen from time to time.”
Urgent steps to learn lessons
In response, a Somerset council spokesperson said: “We accept Judge Marston’s ruling and comments. We have apologised to the family for the distress our actions caused and are working closely with them to provide the right care and support for their daughter now and in the future.”
“We have also taken urgent steps to ensure that all adult social care staff learn from this case. We continue to train and monitor our staff, learning from this and any other national judgments.”
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Fair enough!
This is a big lesson for LAs. They need managers at the top with very good understanding and knowledge of DoLS. It is important that training is offered to senior managers particularly if they are responsible for safeguarding / DoLS. In some cases some LAs will leave crucial decisions about DoLS / safeguarding to their solicitors who might not be experienced in SW investigations / duties and might not have access to all the crucial details. investigating of safeguarding and DoLS must allow all partners to participate, this is the basic aspect of gathering information for assessment process. In some cases SWs and the BIAs find it difficult to question our health partners such as the paediatrician. SWs often forget that they are the key to most of the decision makings. SWs also need to be careful of the use of terminologies such as ‘in the best interests’. Particularly ‘in the best interests’ often appear in reports without thinking it through. These are my personal views.
Tip of the iceberg
While the court of protection continues to disallow costs for personal welfare as standard the majority of families will not be able to afford the upfront costs of challenging such decisions or to take the risk that the (discretionary) s159 rules will result in being given costs. Therefore local authorities with plenty of money for these cases are easily able to squash most families in such situations who are often already struggling financially.