High Court blocks deprivation of liberty damages claim

The High Court has denied a learning disabled man the right to pursue a claim for up to £150,000 in damages against a council he claimed unlawfully deprived him of his liberty for two and a half years.

Mr Justice King refused the 29-year-old’s request for an extension under the Human Rights Act that would have allowed him to pursue a claim against Tameside council relating to a care placement that ended in 2013. The act states proceedings must be brought within a year of an incident unless the court deems an extension “equitable”.

The man argued the council breached his rights to liberty and to a private and family life when it removed him from home in February 2011 after a safeguarding incident and placed him in a respite unit until August 2013. He issued his claim, via his brother as his litigation friend, in February 2016.

His legal team sought damages of between £100,000 and £150,000 for the period of “30 months unlawful detention”. They argued:

• The man was deprived of his liberty while in the respite unit as his placement met the ‘acid test’ for deprivation of liberty set out by the Supreme Court in its landmark Cheshire West ruling in March 2014.
• There was no authority for that deprivation of liberty as the council had failed to make an application to the Court of Protection.
• The council made no adequate assessment of the man’s capacity to make a decision about his deprivation of liberty, or a best interests assessment.
• The council failed to consider an alternative family placement which would have resulted in a ‘less restrictive’ option to the respite unit.

The council argued that the man’s placement pre-dated the Cheshire West ruling and therefore he was not deprived of his liberty as the law stood at the time. It also claimed his family and lawyers could have brought the claim of human rights breaches years ago and any damages would be “nominal” only as the man had suffered “no loss”.

The authority also pointed out it had acknowledged “deficiencies” in its handling of the case in February 2014 after receiving the results of an independent investigation commissioned after a series of complaints from the man’s mother. At the time the council offered to pay the man £2,000 compensation and his mother £1,000. The man’s solicitors rejected the offer on his behalf in September 2014.

The man’s legal team argued his lack of capacity, and his reliance on others to uphold his rights, should “strongly” count in favour of an extension being granted to allow him to bring the claim.

Part of the reason the claim had not been made earlier was ongoing discussions between the legal teams over counter offers for compensation made since February 2014 and the need to secure legal funding.

However, the judge found the man had representation from his family and a firm of specialist solicitors since at least September 2012 and they had the facts to launch the claim by February 2014 at the latest. The council would be at a “distinct trial advantage” if it had to gather evidence for proceedings taking place at least four to six years after the relevant events, he added.

“Through those representing him he had the opportunity to bring his claim within time or shortly thereafter, and through them to have his position protected if necessary by the issuing of a protective writ,” the judge said.

“That he did not do so has to be laid squarely at the door of those looking after his interests and no adequate reason in my judgment has been put forward for their failures, sufficient to make it equitable as between the claimant and the defendant public authority to grant him an extension of time to bring his human rights claim against them.”

The judge made no ruling on the underlying merits of the claim or the chances of the man having received significant damages had it been successful.

Read the judgment in full: AP (By his litigation friend, BA) and Tameside Metropolitan Borough Council