The London Borough of Hillingdon v JV & Ors

RV

PY

The judgment was handed down to the parties by e-mail on 20^th December 2019. It consists of 19 pages, and has been signed and dated by the judge.

JV is currently subject to a Standard Authorisation for deprivation of liberty in her living arrangements at Care Home A. The London Borough of Hillingdon has made an application on form DLA dated 25^th September 2019 for review of that authorisation. Hearings in respect of that application have been held on 2^nd and 18^th October 2019, and the matter is listed for further hearing on 17^th January 2020.

Within these proceedings, the Second and Third Respondents (who are JV’s son and daughter respectively) have made a COP9 application dated 10^th October 2019 that the Court “consider the issue of reinstatement of [RV] as relevant person’s representative (RPR) for [JV].”

At the hearing on 18^th October, JV’s representatives took a neutral position in respect of the RPR issue. After hearing oral submissions, a direction was made that the Applicant and the Second and Third Respondents file written submissions. On receipt of those submissions, I made an order providing for JV’s representatives to be given a copy, and providing an opportunity for filing a response if so wished. It has been confirmed (by e-mail timed at 13.17 on 28^th November 2019) that JV’s representatives do not wish to make any submissions on this issue.

This judgment addresses only the issue raised about appointment of an RPR for JV. The substantive issues in respect of JV’s living arrangements are ongoing.

For the purposes of this judgment I have read:

I acknowledge, with thanks, that Mr. O’Brien’s skeleton argument was prepared on a pro bono basis to assist the court.

The Court has now received from Campbell Law Solicitors a COP30 Notice confirming that they are no longer instructed.

JV is 73 years old. She has two children, the Second and Third Respondents. Her husband died more than ten years ago. It is not disputed that she has dementia, generalised anxiety disorder and obsessive compulsive disorder but she is fully mobile and able to communicate. The extent of her care needs is presently a matter of dispute.

On 21^st January 2016 JV executed Lasting Powers of Attorney for property and for welfare, in which she appointed RV and PY jointly and severally as her attorneys. The instruments were registered by the Public Guardian on 29^th March 2016.

The extent of JV’s assets is currently a matter of dispute but it is accepted by RV and PY that a property at 21 LH “can be considered part of [her] estate” for the purpose of care fees liability. An order has been made which records their agreement that this property may not be sold in the present circumstances and also suspends (on an interim basis) the LPA in so far as it otherwise gives the attorneys authority to sell that property. Whether JV may be able to return to live at that property is presently a live issue before the Court.

JV first moved into residential care, at Care Home R, in May 2018. Whilst she lived there, three Standard Authorisations were granted in respect of her living arrangements:

The attorneys supported JV’s placement at Care Home R but failed to pay the fees due. (They have ‘explanations’ for this decision which may be material to the substantive issues yet to be determined but it is not necessary to consider them at this point.) As a result, the placement was terminated. The Applicant local authority arranged for JV to receive 24 hour care in a Travelodge for a period of 4 days to avoid her being ‘street homeless.’ Thereafter, on 17^th September 2019 she was placed at Care Home A as an emergency placement.

An Urgent Authorisation for deprivation of her liberty in JV’s living arrangements at Care Home A was granted on 18^th September [F15], and extended on 25^th September [F16].

The Applicant local authority made the application to the court on form DLA dated 25^th September 2019[D1]. By order made on 27^th September the Urgent Business Judge listed the matter for attended hearing before me on 2^nd October. On that occasion JV was unrepresented, the Official Solicitor notifying the Court by e-mail on 30^th September that “she is unable to determine the court’s invitation to act in time for this hearing.” RV and JY confirmed their agreement to the placement at Care Home A until the next hearing. Directions were given for them to file a statement setting out their position and for the Public Guardian to file a report as to management of JV’s affairs by the attorneys, and the matter was relisted for hearing again on 18^th October.

A Standard Authorisation in respect of JV’s living arrangements at Care Home A was granted on 7^th October 2019 [F18]. The Best Interest Assessor’s form [J29] in respect of that authorisation identifies the assessor as Charlene Pinto but the document is not signed. The BIA confirmed [J42] that:

“[JV] is unable to select a representative herself due to her cognitive impairment…. Her son [RV] and daughter [PY] have joint LPA for her Health and Welfare. [RV] nominated himself to take on the role. However in the light of the concerns raised in relation to nonpayment of fees and [JV] being evicted from her previous placement, I am of the view that a paid representative would be more appropriate at this stage or at least until the courts make a decision.”

The standard authorisation document itself states that:

RV and PY filed the COP9 application raising the RPR issue, and an order was made on 15^th October 2019 providing for the application to be considered at the hearing three days later.

RV and PY approach the issue on the basis that “the local authority have (sic) sought to remove RV as the RPR.” They submit that “the LPA is entitled to designate the Relevant Person’s Representative…[and] RV should remain as the RPR.” In particular, they assert that

“RV maintains contact and sees his mother regularly. He provides support and makes decisions as her LPA, if needed. Now that the OS is involved in the litigation, there is no conflict of interest in relation to RV remaining as the RPR. There is also a substantial additional issue which is that as RPR, RV can apply for legal aid. Removal of the RPR would mean that he would be unable to apply for legal aid.”

and

“[The local authority] seeks to remove RV as RPR for reasons that this court is about to consider and decide upon. The court awaits an OPG report on the issues. Depending on the outcome of that OPG report (and any other evidence presented), this court will take a view on whether the LPAs acted in the best interests of JV/P. It follows that, if the local authority remove the RPR, they are prejudging the issue and indeed usurping the authority of the court to decide it.”

As to the role of an RPR in circumstances where there is an active challenge to the Standard Authorisation before the court and an independent litigation friend in those proceedings, the position of RV and PY is not entirely consistent. In his position statement, Mr. O’Brien stated that “The role of the RPR is therefore limited, but it does matter in relation to legal aid.” In his skeleton argument, he seems to assert a greater continued importance to the RPR role:

As to the role of the Court of Protection, it is contended on behalf of RV and PY that “The removal of an RPR requires a decision about best interests …so the court can determine this, if the matter is put before the court. In the instant cases, the court is already seized of this issue in the sense that it has been asked to determine best interests.” It is said that the local authority has “failed to comply with the requirements to set out their reasons for removal of the RPR” and what should happen now is that the local authority “formally identify their reasons and make an application to the court. The court can…make a s16 decision on whether the RPR has acted in the best interests of P and …should be removed.”

The Applicant Local Authority approaches the issue differently – not as a ‘termination’ of an existing appointment but rather as a ‘selection’ on the granting of a new Standard Authorisation. The Applicant submits that “the appropriate course was not to appoint RV in the first place” because he fails the statutory test for eligibility for appointment as an RPR in that he is

“not in a position to properly represent and support JV. This is particularly true given the possibility of a financial conflict of interest between JV and RV that has yet to be properly resolved” (paragraph 21 of position statement) and

“The RPR has to represent P’s opinions and the Local Authority does not have confidence that RV will do this. It has been suggested by RV that JV is objecting to her current placement. However, all other evidence from professionals and care workers that has been made available to the Local Authority suggests that JV is content in her placement and is not objecting… set against the other concerns in this case there is a real risk and likelihood that the LPA’s and close family may represent their own views rather than those of JV.”(paragraphs 19 and 20 of further submissions).

As to the role of an RPR where there is an independent litigation friend, the Applicant contends that “As the matter has been brought to Court by the Local Authority, the primary function of the RPR has already been fulfilled” and there is “no ongoing role for a family member RPR now that the Official Solicitor has become involved to represent JV.” The Applicant asserts that “questions of legal aid are for the legal aid agency” and not relevant to the appointment of an RPR.

JV’s litigation friend takes a neutral position.

Schedule A1 of the Mental Capacity Act 2005 was inserted by the Mental Health Act 2007 and came into effect on 1^st April 2009. The implementation of Schedule A1 has been somewhat troubled, and it is likely that it will soon be replaced by a scheme of Liberty Protection Safeguards pursuant to the Mental Capacity (Amendment) Act 2019. However, for now it remains in effect and governs the RPR issues before the Court in this matter.

Schedule A1 makes provision for the administrative authorisation of deprivation of liberty of persons in a hospital or care home. Paragraph 7 provides that the person whose liberty is deprived in such circumstances is the “relevant person;” and Part 10 of the Schedule makes provision for a “representative” for that person. Pursuant to paragraph 139 of Schedule A1 the appointment of a relevant person’s representative (“RPR”) is a mandatory requirement of the supervisory body:

It is expressly provided in paragraph 141 of Schedule A1 that the appointment of an RPR does not affect any appointment of a deputy for the relevant person, any appointment of an attorney by the relevant person, or any powers of the court:

The role of the RPR is considered in the Deprivation of Liberty Safeguards Code of Practice (“the Code”), which supplements the main Mental Capacity Act 2005 Code of Practice. The Code is not a primary source of law but rather, an aid to the interpretation of the law. Pursuant to section 42(5)

The Code sets out the role of the RPR in succinct terms, at paragraph 7.2:

The identification of the person whom the supervisory body should appoint is more convoluted:

Regulations have indeed been made – the Mental Capacity (Deprivation of Liberty:

Regulation 3 provides that a person can only be selected to be a representative if they meet all of eight specified characteristics.

Above this ‘bottom line’, the Regulations provide for a hierarchy of RPR selection as follows:

There is fallback provision if the attorney or deputy does not wish to make the selection.

The interrelation of the statutory provision (paragraph 140 of Schedule 1A of the Act) and the regulations was considered in the decision of Baker J (as he then was) in AJ v. A Local Authority [2015] EWCOP 5:

The process of selection and appointment of an RPR is an early part of the Standard Authorisation procedure. Pursuant to regulation 10, it must begin as soon as the best interests assessor is chosen or, where there has been an appointment but it comes to an end whilst the relevant person remains subject to a Standard Authorisation, as soon as the appointment ends.

Regulation 13 sets out eight specific events which operate to bring the appointment of an RPR to an end.

The Code puts it somewhat differently, at paragraph 7.29.

Schedule A1 and the regulations appear to conceive of the appointment of an RPR as specific to a particular standard authorisation, not as a general status such as may ‘roll over’ from one authorisation to the next. The wording of paragraph 139(1) of the Schedule envisages a fresh appointment with each granting of a standard authorisation, and regulation 12 provides that appointment “must be for the period of the standard authorisation.” The explanation of the RPR role set out at paragraph 7.2 of the Code¹ seems to follow this approach, and so too did the Applicant Local Authority and the Second and Third Respondents in the series of three selections of RPR for JV whilst she was living at Care Home R.

It follows that the appointment of a paid RPR upon granting the current standard authorisation in respect of JV’s living arrangements at Care Home A was not a ‘termination’ of RV’s appointment under the third authorisation in respect of Care Home R, but rather a fresh selection. RV had previously been appointed as RPR, but in respect of a completely different placement. Whilst JV was in the Travelodge, her living arrangements were not susceptible to authorisation under the Deprivation of Liberty safeguards. JV’s subsequent placement at Care Home A required a new authorisation and, pursuant to paragraph 139(1), a new appointment of an RPR. So, it is the regulations which provide for selection which the court must now consider, not the regulations which provide for termination. To that extent, I agree with Mr. Boden.

In respect of the authorisation under consideration, it is acknowledged in the BIA’s assessment document that JV lacks capacity to select a representative for herself, and that RV and PY as attorneys have authority to make the selection for her. It is stated that they were given that opportunity and “[RV] nominated himself.”

Pursuant to regulation 7(1), the next required step is that the BIA consider whether the person selected is eligible for the role of RPR. Given that Regulation 7(2) would require her to recommend RV’s appointment if she did confirm his eligibility, it must be inferred that the BIA considered herself “unable to confirm” his eligibility. (The Applicant as Supervisory Body clearly interpreted the BIA’s statement that way, and so do I.)

As determined in AJ v. A Local Authority, the eligibility requirements are comprised of those matters set out in regulation 3 and in paragraph 140 of Schedule A1. A difficulty of language arises in this combination. Applying the regulations up to this point, the ‘person making the selection’ is

In my judgment that cannot have been the intention of Baker J in AJ v. A Local Authority. He clearly envisaged (at paragraph 86 of his judgment) that the Supervisory Body would consider whether the person selected would comply with the obligations under paragraph 140. In order to make sense of paragraph 140 of Schedule A1 being encompassed within the eligibility requirements, it must be that reference in that paragraph to ‘the person making the selection’ is understood to include the person confirming the selection (as in the current circumstances), and the body making the appointment (as in the circumstances of AJ.)

The BIA explained her decision not to confirm RV’s selection [J42] on the basis of “concerns raised in relation to non-payment of fees and [JV] being evicted from her previous placement.” These concerns clearly do not relate to ineligibility under regulation 3 or paragraph 140(a). Whilst it is not entirely clear that the BIA actually thought in these terms, it is possible to interpret her words as the expression of a conclusion that RV would not ‘represent’ or ‘support’ JV ‘in matters relating to or connected with this Schedule.’ The Applicant certainly seems to have understood the BIA’s assessment form that way, and shares her view (Footnote: ¹).

Whether or not the BIA confirms the eligibility of the selected person, the Regulations provide for what happens next. If the BIA had concluded that RV was eligible, pursuant to Regulation 7(2) she would be obliged to recommend his appointment. On the other hand, if the BIA is unable to confirm RV’s eligibility, pursuant to Regulation 7(3) she must advise him of that decision and invite him to make a further selection.

There is no indication in the information available to me that RV was invited to make an alternative selection. The implication of the BIA’s comment at [J42] is that he was not.

The regulations do not provide for what is to happen in these circumstances (ie when the person who may select the RPR is not given the required further opportunity to do so.) Nor do they provide for how many opportunities to make a selection must be given if the person selecting chooses an ineligible candidate on more than one occasion. It is however clear that selection of a person whom

In this matter, the BIA did not actually name a recommended RPR. She did however express “the view” that “a paid representative would be more appropriate.” This, in my judgment, amounts to selection by the BIA, in circumstances where she was not permitted by the regulations to make the selection.

Pursuant to Regulation 9, a paid representative may be selected by a supervisory body where that body “is given notice under regulation 8(5).” Does the BIA’s completion of the form [J42], including her view that a paid representative would be more appropriate than the attorney’s selfselection, amount to a notice pursuant to regulation 8(5)?

The difficulty here is that regulation 8(5) appears to address the situation where a BIA is permitted to make a selection but does not do so, whereas in the circumstances currently being considered the BIA did ‘select’ the RPR when it was not open to her to do so.

In my judgment, it is not possible to construe regulation 8(5) as encompassing the current circumstances. Regulation 8(5) is better understood as the ‘fallback’ provision where selection by the BIA has not been achieved, ie the equivalent of regulations 5(2) and 6(3) where selections by the relevant person themselves or their attorney/deputy have not been achieved. If regulation 8(5) encompassed the situation where a BIA makes a selection when not entitled to do so, regulation 7(3)(b) would be circumvented. Looking at regulations 7 and 8 together, and in the context of the overall hierarchy of selectors, I conclude that regulation 8(5) is properly limited to circumstances where the BIA is permitted to make the selection but does not do so.

It follows that, in the current circumstances, the supervisory body cannot be said to have been ‘given notice under regulation 8(5)’; and so, pursuant to regulations 9 and 11, the power to select a paid representative does not arise. RV’s self-selection having been rejected on the basis of ineligibility, he (and/or PY) should in accordance with the regulations have been invited to make a further selection pursuant to regulation 7(3)(b).

In reality, it is likely that RV would wish to select PY next, and the BIA would take the same view of her eligibility as was taken of RV’s. Assuming that the attorneys continue to accept the previous conclusion that LV is ineligible, then the options thereafter would be to make a third selection (although there is no indication in the information available to me as to who that may be), or to decline to make a selection. The former seems unlikely to meet the attorneys’ apparent objective in raising this issue (namely restoration to them of an entitlement to public funding). The latter would mean that BIA could choose to make no selection, thereby opening the door to the appointment of a paid representative by the supervisory body.

On behalf of the Second and Third Respondents it is submitted that there is another approach to be taken, namely that the court determines the identity of the RPR. That suggestion rests on the contention that the supervisory body has terminated RV’s appointment as RPR on the basis of ‘best interests’ considerations pursuant to regulation 13(g).

As explained above, I do not accept the characterisation of the situation under consideration as a “termination” of RV’s appointment as RPR but rather as an issue of RPR selection. The BIA’s refusal to confirm RV’s self-selection was her determination of non-eligibility. That determination may be by reference to factors which could also inform a ‘best interests’ decision under regulation 13(g) but in my judgment that does not detract from the requirement to follow the process of selection set out in the regulations.

Mr. Boden’s submission that there is ‘no scope’ within the regulations for the court to determine the selection of the RPR is clearly right: the purpose of Schedule A1 and the regulations which derive their authority therefrom was to create an administrative system for authorisation of deprivation of liberty. The regulations do not make any reference to the court.

However, I do not agree with Mr. Boden’s submission that selection of the RPR is outside the jurisdiction of the court, on the following reasoning:

However, the conclusion that selection of the RPR is within the jurisdiction of the court does not imply that the court should exercise its jurisdiction in the current circumstances. Regard must be had to the fact that the standard authorisation process, including the selection of an RPR, is intended to be an administrative exercise. Regulations provide for a selection procedure, and that procedure has not yet been followed properly. The BIA and/or the supervisory body having concluded that RV is not eligible to be appointed, as attorney pursuant to regulation 7(3), RV should be invited to make a further selection.

RV may select a person whom the BIA and the supervisory body each consider to meet the eligibility requirements, in which case pursuant to regulation 11 the supervisory body should appoint that person as RPR. Alternatively, if RB declines to make a selection, regulations 8, 9 and 11 take effect: either the BIA makes a selection, or notifies the supervisory body that she is not making a selection, whereupon the supervisory body may appoint a paid RPR.

RV may suggest that this approach effectively hands to the BIA a veto over his selection of the RPR on the basis of the BIA’s own view of JV’s best interests. After careful consideration, I am satisfied that such an interpretation would be to overstate the position. In the first place, regulation 7(2) gives the attorney an opportunity for further selection. Furthermore, it must be remembered that the BIA’s assessment is of the selected person’s eligibility, where eligibility includes being satisfied that the selected person would represent and support the relevant person [JV] in connection with the deprivation of liberty authorisation. Ultimately, as Baker J made clear in AJ (paragraph

I am not persuaded by Mr. O’Brien’s submissions of the wider significance of the RPR role in circumstances where there is an active challenge to the authorisation before the court. In my view he was more correct when he acknowledged that the continuing import of the role in those circumstances is “limited.” In so far as a family-member RPR may be expected to undertake tasks which a litigation friend may not, I am satisfied that RV is in a position to fulfil those tasks as her son and with such authority under her LPAs as is not presently suspended.

In reality, the selection of the RPR for JV is “a substantial additional issue” in this matter because of its possible implications for public funding for RV in these proceedings.

JV, as the person who is deprived of her liberty, is entitled to public funding of legal representation without means assessment (and, in my view, rightly so.) That entitlement funds the representatives appointed by JV’s litigation friend, the Official Solicitor.

For the avoidance of doubt, I am satisfied that the appointment of the Official Solicitor as litigation friend for JV is appropriate. RV and PY properly have a position of their own in respect of the issues before the court, and they should be free to advance that position as they see fit. However, that means that they could not appropriately act as litigation friend for JV (Footnote: ²). Quite properly, they have not suggested otherwise.

Effectively therefore, in pointing out that “Removal of the RPR would mean that he would be unable to apply for legal aid” the suggestion isthat, if RV was the appointed RPR, he would be entitled to public funding for representing his own position, not for representing JV (whose litigation friend, presently at least, takes a different position.) None of the parties before me has made any detailed submissions as to whether this suggestion is in fact the correct interpretation of the Civil Legal Aid Regulations. I make no assumptions on that point. Mr. Boden asserts simply that funding issues are irrelevant to the approach to be taken to the selection of the RPR.

Of course the court recognises the importance of access to legal representation for all litigants, and is slow to reach any conclusion which closes a possible avenue of funding such representation.

Having come to the view that she could not confirm RV’s selection of himself as RPR because he did not appear to her to meet the eligibility requirements, the Bests Interests Assessor should have invited RV to make another selection. That did not happen. It was not open to the BIA either to choose the RPR, or to notify the supervisory body that she had made no selection. Therefore the circumstances of regulation 8(5) have not arisen, and it was not open to the supervisory body to select for appointment a paid RPR.

RV should now be invited to make a further selection of RPR if he so wishes. His selection will again be subject to confirmation by the BIA and the supervisory body of the eligibility of the person selected.

The primary function of the RPR in this matter has been discharged already, in that proceedings are already before the court in respect of the standard authorisation. In so far as an RPR has a wider remit than that, it seems to me to fall within the range of tasks which RV can anyway discharge as JV’s son and within the active authorisations of also being her welfare attorney.

JV’s position is appropriately secured by being party to these proceedings in her own right, and the appointment of the Official Solicitor as litigation friend for her. Wider issues of entitlement to public funding are outside the jurisdiction of this court, and not relevant to selection of an RPR in accordance with the regulations.