Case Law and Legal Summaries 2024 overview

Introduction

Case Law and Legal Summaries support practitioners with case decision making and the application of the law. They can also be used to support strategic planning where emerging case law changes the legal landscape for wider local authority practices.

To support navigation across the catalogue of Case Law and Legal Summaries this page provides an overview of the cases organised by topic area, legal news and guidance summarised during 2024.

There is also a legal glossary, a catalogue of legal literacy resources and the Legal Literacy: Change Project resources which are designed to support direct practice, supervision and organisational systems.

Key cases covered during 2024 include:

• Local Authority A v ZZ [2023] EWCOP 61: A young man with a history of sexual offending retained capacity to make decisions about engaging in sex with his girlfriend.
• A Local Authority v KP [2023] EWHC 3102 (Fam): The judge made an interim order in respect of an 18-year-old woman who lacked capacity to make decisions about living with, and contact with, D, who posted a serious risk to her.
• Sunderland City Council v CLF [2024] EWCOP 11: The Court of Protection found that a young woman, CLF, lacked capacity to make decisions about residence and contraception, but not about sex.
• A Local Authority v X [2023] EWCOP 64: The Court of Protection found that it was in the best interests of a woman with diagnosis of hoarding disorder to be removed from her home in order to enable the ‘clearance’ of the property.

Capacity and best interests

• HH v Hywel Dda Health Board & Ors [2023] EWCOP 18: The Court of Protection could hear the best interests cases together of two people who lacked capacity, AH and HH, and who were a married couple.
• Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44: The court found that a man with ‘a long history of reported sexual offending’ had the mental capacity to make decisions about engaging in sexual relations, to disclose the risk of sexual harm that he posed to others, and to allow the local authority to disclose the risk of sexual harm that he posed to others.
• Re H (An Adult; Termination of Pregnancy) [2023] EWCOP 183: The Court of Protection found that it was in the best interests of a woman detained under section 3 of the Mental Health Act (MHA) 1983to have a medical termination of her pregnancy.
• J v Luton Borough Council [2024] EWCA Civ 3: The Court of Appeal found that a judge in the Court of Protection had ‘properly conducted’ a hearing that concluded it was not in the best interest of a young man to travel to Afghanistan on a family holiday.
• Re DY (Capacity) [2024] EWCOP 4: The Court of Protection found that a woman assessed in 2020 as unlikely to gain capacity to make a number of decisions ‘within the next few years’ now had that capacity.
• Local Authority A v ZZ [2023] EWCOP 61: A young man with a history of sexual offending retained capacity to make decisions about engaging in sex with his girlfriend.
• A Local Authority v KP [2023] EWHC 3102 (Fam): The judge made an interim order in respect of an 18-year-old woman who lacked capacity to make decisions about living with, and contact with, D, who posted a serious risk to her.
• Sunderland City Council v CLF [2024] EWCOP 11: The Court of Protection found that a young woman, CLF, lacked capacity to make decisions about residence and contraception, but not about sex.
• Sheffield City Council v EE [2024] EWCOP 5: The Court of Protection found that a woman retained capacity to make decisions about sex, and contraception.
• Re MA & AA [2023] EWCOP 65: The Court of Protection found that it was not in the best interests of a married couple, both with a diagnosis of dementia, to have contact with one another.
• A Local Authority v X [2023] EWCOP 64: The Court of Protection found that it was in the best interests of a woman with diagnosis of hoarding disorder to be removed from her home in order to enable the ‘clearance’ of the property.
• Wareham v Betsi Cadwaladr University Health Board [2024] EWCOP 15: A woman – over whom there were safeguarding concerns in her relationship with her parents – lacked capacity to make a range of decisions under the Mental Capacity Act 2005.
• Re A [2024] EWCOP 19: In a finely balanced best interests decision, the Court of Protection decided that a 25-year-old woman who had been covertly medicated should return home to live with her mum and cease the covert medication.
• Re ZZ (Capacity) [2024] EWCOP 21: The Vice President of the Court of Protection found on appeal that a judge ‘was wrong’ in concluding that a young man had capacity to make decisions about residence, sexual relations, and marriage.
• A Local Authority v A [2024] EWCA Civ 572: The Court of Appeal dismissed an appeal in relation to an earlier decision by the Court of Protection that a young woman who had previously been covertly medicated should have this stopped and return home to live with her mother.
• A Local Authority v ZX [2024] EWCOP 30: A young man lacked mental capacity to make decisions about sexual relationships.
• London Borough of Hackney v A & Ors [2024] EWCOP 33: The court made wide-ranging orders requiring a young man, A, to be returned to his placement given the extent of the safeguarding concerns around him.
• MA v Gateshead Council [2024] EWCOP 34: The Court of Protection found that it was in the best interests of a woman placed in a care home to have a trial placement in her own home.
• Re PS (Severe Short Term Memory Loss: Capacity to Engage in Sexual Relations) [2024] EWCOP 42: A woman in a long-term relationship did not lack capacity to make decisions about sexual relationships.
• Leicester City Council v P & Ors [2024] EWCOP 53: The Court of Protection refused to grant anticipatory orders in respect of a woman with dissociative identity disorder, even though there was evidence that at times - particularly during periods of dissociation – she lacked capacity to make decisions about her care and support.

Charging

• R (YVR) v Birmingham City Council [2024] EWHC 701 (Admin): The High Court held that a local authority charging policy under the Care Act 2014, which had the de facto effect of being more punitive against individuals with complex needs that are unlikely to be able to work, was not unlawful given the extreme financial situation the particular local authority found itself in.

Deprivation of Liberty

• A Hospital NHS Foundation Trust v Ms KL [2023] EWCOP 59: The Court of Protection authorised the deprivation of liberty of a person receiving chemotherapy in one hospital while they remained formally detained under the Mental Health Act 1983to another hospital.
• Aberdeenshire Council v SF [2024] EWCOP 24: The Court of Protection refused to recognise a Scottish guardianship order that authorised a woman’s mother to consent to her deprivation of liberty.
• Re PQ (Court Authorised DOL: Representation During Review Period) [2024] EWCOP 41: The central issue in this case was the provision of representation to a person whose deprivation of liberty was authorised by the Court of Protection.

Forced marriage

• Re AG (Welfare: Forced Marriage Protection Order) [2024] EWCOP 18: The court made an interim Forced Marriage Protection Order (FMPO) and orders under the inherent jurisdiction ‘regulating contact’ between a woman and her parents. In addition, it issued ‘proposed travel guidance’ that may be useful in similar situations.

Housing

• R (Sepulchre) v The Royal Borough of Kensington and Chelsea [2023] EWHC 2913 (Admin): A local authority’s decision to refuse to provide accommodation for the claimant under the Housing Act (HA) 1996was overturned.
• R (SB and SBO) v London Borough of Newham & Ors [2023] EWHC 2701 (Admin): A local authority had acted unlawfully in the way it had made decisions to remove temporary accommodation from an asylum seeker with needs for care and support.
• Dudley Metropolitan Council v Mailley [2023] EWCA Civ 1246: The Court of Appeal found that because a secure tenancy ended when the tenant was moved permanently into a care home, it could not be subsequently assigned to her daughter.

Inherent Jurisdiction

• Wakefield Metropolitan District Council v FH [2024] EWHC 830 (Fam): The court held the inherent jurisdiction could be used to make orders in respect of a couple over whom there were safeguarding concerns.
• Re P (Vulnerable Adult: Withdrawal of Application) [2024] EWHC 1882 (Fam): Orders made under the inherent jurisdiction of the High Court in relation to a ‘vulnerable’ woman who was being coerced and unduly influenced by her father were discharged.

Medical treatment

• Hemachandran & Anor v Thirumalesh & Anor [2024] EWCA Civ 896: The Court of Appeal overturned a decision of the Court of Protection that a woman lacked capacity to make decisions about palliative medical treatment.

Mental Health Act 1983 and 2007 (includes ordinary residence)

• Re H (An Adult; Termination of Pregnancy) [2023] EWCOP 183: The Court of Protection found that it was in the best interests of a woman detained under section 3 of the Mental Health Act (MHA) 1983to have a medical termination of her pregnancy.
• Lukes v Kent & Medway NHS & Social Care Partnership Trust [2024] EWHC 753 (KB): The High Court found that there was a ‘realistic prospect’ that the trust was liable in negligence due to a ‘failure ...to ascertain a proper and accurate picture about C's mental health history for the purposes of assessing/screening him’.
• Surrey Police v PC & Ors [2024] EWHC 1274 (Fam): The High Court had to consider a situation where a man with mental health concerns had been detained at a police station.
• Newcastle City Council v LM [2023] EWCOP 69: The Court of Protection found that a woman was ‘habitually resident’ in England despite her having lived in a placement in Scotland for over five years. However, the judge also noted that his final order that it was in her best interests to remain in Scotland would be ‘likely to tip the scales’ so that she became resident in Scotland relatively quickly.
• North Tees and Hartlepool NHS Foundation Trust v KAG [2024] EWCOP 38: The Court of Protection found it ‘must state clearly’ that an application to it was not needed to authorise the placement of a percutaneous gastrostomy tube (PEG) as part of the treatment of the ‘mental disorder’ of a person detained under the Mental Health Act (MHA) 1983.
• Cardiff and Vale University Health Board v NN [2024] EWCOP 61: The Court was critical of a Health Board which had failed to lodge an application to the court in a timely way.

Power of Attorney

• TA v The Public Guardian [2023] EWCOP 63: The Court of Protection found that the ‘certificate provider’ for a lasting power of attorney (LPA) must not merely witness that the form has been signed. They must also ‘form an opinion’ that the person making the LPA understands the document, that they are not subject to fraud or undue pressure, and that there is nothing else that should prevent the LPA being created.
• Swansea Bay University Health Board v P [2023] EWCOP 67 and CL v Swansea Bay University Health Board [2024] EWCOP 22: The Court of Protection found that it has the power to discharge a deputyship for reasons other than the deputy contravening their authority or acting in ways that are not in the person’s best interests.
• AB v CD [2024] EWCOP 32: The Court of Protection appointed a health and welfare deputy for a man to prevent the ‘broken relationship’ between his mother and care provider from impacting him.
• Lumb v NHS Humber and North Yorkshire ICB [2024] EWCOP 57: The Court of Protection found that managing the direct payments of a personal health budget is beyond the powers granted by a property and affairs deputyship.

Registered Professional Practice

• Social Work England v Sobrany [2024] EWHC 67: The High Court refused a request by Social Work England (SWE) to extend an Interim Suspension Order by 18 months.

Working with families

• An ICB v G[2024] EWCOP 13: The Court of Protection found that the family of a woman with a degenerative neurological condition had engaged in ‘a pattern of sustained, controlling and bullying behaviour’ towards staff at her care home and had repeatedly ‘tampered’ with her ventilatory support.
• Re: P (Application to Withhold Closed Material: Concurrent Civil Proceedings) [2024] EWCOP 26: The Court of Protection granted an order allowing information about legal proceedings to be withheld from a man’s parents where there were safeguarding concerns about their relationship, in order for a capacity assessment to be undertaken.
• A Local Authority v Sam M [2023] EWCOP 68: The Court of Protection found that it was in the best interests of a man for his mother to be evicted from his property.
• Stoke-on-Trent City Council v KA [2023] EWCOP 74: The Court of Protection found it proportionate for a placement to use a wheelchair to support an ‘able-bodied young woman ...to transition between public areas ...and to enter the premises’, despite disagreement from her parents.
• NHS South East London ICB v AB [2024] EWCOP 28: The Court of Protection found it was not in the best interests of a woman diagnosed with cerebral palsy and microcephaly to have further trials of living at home with her mother. The judge observed that ‘it is reasonable that public bodies who bear the resource burden of such trials have clarity as to expectations going forwards’.

News and guidance

• The Powers of Attorney Act 2023 has been given royal assent.
• Independent Care (Education) and Treatment Reviews have published their final report.
• Independent Review of Greater Manchester Mental Health NHS Foundation Trust (GMMH).
• The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023 will be effective from 6 April 2024.
• Government response to the Joint Committee on the Draft Mental Health Bill (April 2024).
• The Department of Health and Social Care has issued statutory guidance on discharge from mental health in-patient settings.
• The Law Society has updated its ‘Understanding when someone is deprived of their liberty’ guidance.
• The Kings Speech (July 2024).
• Deprivation of Liberty statistics.
• The Care Quality Commission (CQC) has identified the Deprivation of Liberty Safeguards as an ‘area of specific concern’.