PBM v TGT & Anor

This case concerns a number of applications in respect of PBM who is in his midtwenties. PBM has been represented in these proceedings by his litigation friend the Official Solicitor who has instructed David Rees QC for this hearing. From the outset, PBM expressed considerable concern about the possibility of members of the public being present at this hearing. Unusually, the decision was taken by me, following consultation with counsel, that I should hear the case in private. I intend to publish this Judgment in an anonymised form which will not only remove reference to names but will also remove geographical references (save for the fact that PBM lives in Wales, as that is relevant to the applicable statutory background). I am of the clear view that the very personal and sensitive nature of the material being considered at the hearing made it inappropriate to conduct the hearing in open court and that hearing the matter in open court would have been likely to cause emotional harm to PBM.

By Court order dated 7 March 2013, TGT of Z Solicitors was appointed as PBM’s Deputy for Property and Affairs. By application dated 10 May 2018, the Deputy sought court orders as to the following:

At a directions hearing on 19 June 2018, by agreement, I ordered that PBM would be the applicant in these proceedings. PBM requested to meet me prior to the final hearing and, with the agreement of all parties, on 10 October 2018 I met with him. I made it clear to him (as did the Deputy and his solicitor) that my meeting with him was not in any sense an evidence gathering exercise. When we met, the Deputy and his solicitor were present throughout. I felt it important to respond positively to PBM’s request and he was charming and talkative when we met. There is an agreed note of our conversation which I have ordered should remain on the court file.

By order dated 7 December 2018, the relevant local authority for the area in which PBM lives (“the LA”) was required to file a position statement in respect of what duties, if any, were owed to PBM by the LA pursuant to the Social Services and Wellbeing (Wales) Act 2014. I excused the need for the LA to attend or to be represented at the hearing, but have received a comprehensive a position statement on behalf of the local authority from their instructed counsel David Hughes, for which the court is grateful.

By that same order of the 7 December 2018, I identified the issues that would need to be considered at the final hearing. These were:

Both the Official Solicitor and the Deputy had made it clear in their respective Position Statements that they would wish to consider their positions further once they had heard the oral evidence of Dr Layton, the jointly instructed expert. There has now been a considerable narrowing of issues and it is agreed by all that PBM does have the capacity to marry, to make a will and to enter into a prenuptial agreement. Given the unusual circumstances of this case, it is agreed that I should give a Judgment in respect of these agreed issues, albeit that much of this Judgment will be taken up with the issue as to whether PBM has capacity to make a decision as to whether he should be told about the amount of his estate. I am told by Mr Rees on behalf of PBM, and of course accept, that it is PBM’s wish that he be told about the extent of his assets. The Deputy does not agree that he should be told. Before I give my Judgment in respect of this discrete, but important issue, I need to set out the background, the legal framework and my concise reasons for agreeing with the decisions that the parties have reached in relation to the other matters.

PBM has an acquired brain injury as a result of a deliberate injection of insulin by his father when he was 12 months old. Among PBM’s difficulties, he sustained muscular and ligament problems resulting in a number of orthopaedic surgeries. PBM has been in and out of a wheelchair due to the impact of surgery on his lower limbs. PBM received a significant compensation award from the Criminal Injuries Compensation Authority (“CICA”) in respect of these injuries and this is managed for him by his Property and Affairs Deputy. PBM is described as having coexisting mild/moderate learning difficulties; he has an autistic spectrum disorder (Asperger’s) and epilepsy.

In order to substantiate PBM’s claim to the CICA, a number of expert medical reports were obtained. The conclusion that was reached was that PBM would, on attaining 18, lack capacity to litigate and to conduct his own affairs. PBM was described as being impulsive in his thoughts and actions which had implications in respect of safety awareness in the management of even small amounts of money. One report found that PBM could be emotional and behaviourally reactive if he did not get his own way. The author felt that PBM lacked any form of inhibitory control.

Happily, as appears to be agreed by all, PBM has recovered from his injuries to a greater extent than was anticipated at the time when his award was assessed by the CICA. PBM lives in a bungalow in Wales with the benefit of a care package run by a case manager.

Since about 2016, PBM has been in a relationship with his fiancée MVA. They had originally planned to marry in June 2018. However, on 24 May 2018, following an application by the Deputy, the court made an interim declaration that PBM lacked capacity to marry and consequent thereto a caveat has been entered by the Deputy under section 29(1) of the Marriage Act 1949. This had the consequence of preventing PBM from marrying. I am aware from all that I have read and heard that PBM was upset by this step taken by the Deputy. Whilst I understand and sympathise with PBM in this regard, I am not in any doubt that the Deputy was correct in making the application.

PBM did not give evidence at the hearing and nobody suggested that he should. He did, however, prepare a statement dated 15 January 2019 which everyone agrees was prepared by him and is set out in his own words. Although not evidence in a formal sense, the letter is significant in assisting me to understand PBM’s wishes and feelings and I direct that a copy of it should remain on the court file. In his statement, PBM describes that he lives in his house with his partner MVA. He says that they have a number of dogs “that bring joy to every day”. He says that he and MVA are in a stable relationship, “and all we want to do is to be able to build our future together without anyone having to tell us yes or no. I want to purchase a house with land and be able to build a business of our own, make our own money and to be able to make it a home as a married couple.” PBM describes in his letter that MVA is “the one constant support I have every day she is there we support each other”. He, not unreasonably, observes, “everyone deserves to be happy and just because I have a brain injury that doesn’t make me any less of a person as I deserve to be happy and be able to make the decision to marry the woman I love and want a future with”.

In his statement, PBM refers to his desire to enter into a prenuptial agreement, “as we both are responsible and believe you enter a marriage with what you have and if for any reason it wasn’t meant to be you will leave the marriage with what you entered it with”. He also refers to the fact that he has made a will before and should be able to do so again, saying “I am capable to make decision by myself”.

In his statement, PBM also refers to his desire to take full control of his financial affairs. In fact, by agreement, his Deputy is to remain in place and I shall continue the declaration that PBM lacks capacity to manage his property and affairs. I made it clear in court, and repeat here, that this does not mean that such a declaration is there for all time and in due course PBM may very well make an application to the court for the discharge of his Deputy. I am satisfied, for reasons which I shall expand upon below, that the time has not yet been reached when this should happen.

Significantly, PBM says in his statement, “I want to be judged as the person I am yes I have a brain injury but that does not define me. I am a guy in a relationship just wanting independence and to be able to make the choices I want without people telling me I can or I can’t. I’m doing something right as my care used to be 24/7 however it has been reduced by loads. I made the choice to purchase a house and dogs and move with my partner. I make day-to-day decisions by myself along with MVA because as a couple there are things to decide together.” Movingly, PBM ends his statement with these words: “I just want to be happy and not live like this anymore. I want to be in control

The court had the benefit of three witness statements from TGT, PBM’s Deputy. Her statement was uncontroversial and therefore she did not need to give oral evidence. The Deputy explained that the package of care for PBM is presently, on average, 40 day hours per week staff are on hand to provide PBM with information so that he can make informed decisions, to prompt him with household tasks, to support and address any concerns with the case manager, to transport him to appointments as required and to carry out various repairs as required.

The Deputy reported that, on occasions, PBM has made decisions that disregard the advice that he has been given and the Deputy believes that on occasions he has made rash decisions which then lead him to ask the case manager to sort out the problems that have arisen. The Deputy notes that, although the support plan has not changed much in the past six years, the way that it is delivered has changed since MVA moved in. The Deputy believes that it is now more difficult to engage PBM in the domestic elements of the house work, which PBM now regards as MVA’s domain.

The Deputy reports worries that PBM’s brain injury has led him to having poor concentration and a limited attention span such that whilst he can set goals and plans well, he does not always put these into action. She refers to occasional problems with his memory. She also says that at times PBM can display verbal aggression, mainly when request for money cannot be honoured. There was an episode in about October 2018 when there were increased requests for money. It is clear that there was an occasion when PBM was taken advantage of by another man and lost some money as a consequence. It is understood that this male has criminal convictions and had allegedly acted towards MVA and PBM in a threatening manner.

The episode involving money being requested by PBM and passed on to a person that was taking advantage of him demonstrates that the current situation is working, in that it quickly became clear to the Deputy that things were not right. PBM himself says, and I accept, that he has learned from the episode and will be more cautious in the future. I also note that other people have also been conned by this male and, as Dr Layton himself said, it is important to distinguish between people who are vulnerable and people who have a disability. Just because PBM was conned is not necessarily evidence of his inability to manage his affairs. However, as set out above, there is no suggestion currently that the Deputyship should end.

The court also had the benefit of a statement from the LA’s Adult Safeguarding Service Manager who dealt with social services involvement in PBM’s life. Again, her evidence was uncontroversial and so she did not need to give oral evidence.

Unsurprisingly, there is no issue as to the applicable law in this case. I have, of course, been referred to the Mental Capacity Act 2005. It is clear that:

The statutory test of capacity is found at sections 2 and 3 MCA 2005:

The test of capacity therefore has two elements, both of which must be present before a person can be found to lack capacity under the MCA 2005. There must be an inability to make a decision, and this must be because of an impairment of, or a disturbance in the functioning of, the mind or brain. The need for this causal nexus was emphasised by the Court of Appeal in PC v City of York Council [2013] EWCA Civ 478; [2013] COPLR 409.

Capacity under the MCA 2005 is time and issue specific (see for example comments of Munby J in Sheffield City Council v E [2004] EWHC 2808 (Fam) at [39] to [49] regarding the difference between “litigation capacity” and “subject matter” capacity). In this regard I have been referred to the decision of Hedley J in A, B & C v X & Z [2013] COPLR 1 where he made (qualified) findings that P had testamentary capacity and capacity to marry, but lacked capacity to manage his property and affairs.

Where a person lacks capacity to make a decision, then a decision may be made on their behalf by the Court or a Deputy appointed on their behalf (section 16 MCA 2005). In relation to matters relating to care and treatment, decisions may be effectively taken on an informal basis under section 5 MCA 2005 (Footnote: ¹). Any decision taken on behalf of a person lacking capacity must be made in their best interests (MCA 2005 ss1(5)). MCA 2005 section 4 sets out a checklist of matters which should be considered when determining where a person’s best interests lie. Among the factors to be considered are the person’s past and present wishes and feelings (s4(6)(a)). The weight to be attached to such wishes and feelings will vary from case to case, but where P is close to the border of capacity greater weight should be attached to those feelings: Re M; ITW v Z [2009] EWHC 2525 (Fam) [32] to [35].

Dr Michael Layton has been a consultant psychiatrist since 2008. His specialism is psychiatry of learning disability. Furthermore, he has additional specialist training in the diagnosis, assessment and treatment of Autism Spectrum Disorder, including Asperger’s Syndrome and High Functioning Autism. He has considerable experience of assessing individuals under the Mental Capacity Act.

Dr Layton has produced reports dated 30 July 2018, 9 September 2018 and 4 December 2018. In addition, he has answered various questions that have been put to him. Dr Layton was instructed to provide an opinion on:

In his first report, Dr Layton set out the details of PBM’s condition and repeated much of the background set out above. Importantly, Dr Layton reported that PBM does not seem to have had any significant deterioration in his day-to-day difficulties since ceasing his ADHD medication.

The specific matters which a person needs to be capable of understanding in order to have capacity to marry are set out by Munby J in Sheffield City Council v E [2004] EWHC 2802 (Fam). Dr Layton correctly recorded the test for capacity to marry enunciated in that case as being “a simple one namely:

PBM was clear to Dr Layton that marriage meant “making a commitment to each other, to be loyal and to look after each other the rest of your lives”. Dr Layton sets out a series of questions that he asked PBM and it is clear that PBM had a mature and clear understanding of what marriage involves. In his oral evidence, Dr Layton was able to confirm that he had also discussed with PBM the possibility of a marriage ending, the consequences of splitting up and the financial consequences that might ensue.

As I have set out above, the Official Solicitor, on behalf of PBM, submits that the court should discharge its interim declaration that PBM lacks capacity to marry and declare that he has the relevant capacity. Everyone is now agreed that PBM does have capacity to marry and I am satisfied, on the basis of everything that I have read and heard, that this is the correct decision. In my judgement, PBM has the capacity to marry. I make it clear, however, that in my judgement the Deputy, having legitimate concerns, had a responsibility to take the actions that she did.

The caveat must of course now be removed forthwith.

All parties are agreed that it would be appropriate for PBM and MVA to enter into a prenuptial agreement and I understand that MVA has agreed to this. Whilst it is not for me to seek in any way to bind or influence a judge who might have to hear an application for financial provision in the unhappy event of the marriage ending, it seems to me that the protection of an award of damages such as that received by PBM is a

As set out above, the only contentious issue remaining in this case is whether PBM has capacity to decide whether he should be informed about the extent of his assets. I shall deal with that shortly, but it is obviously desirable (from the prenuptial agreement perspective) that he should know. I make it clear that this is not a reason for him to know or not since the test that I have to apply in relation to that issue is the test of capacity already set out above. However, it is hard to envisage how the disclosure consistent with a successful prenuptial agreement could take place without PBM knowing about the extent of his estate.

It is axiomatic that it would not be appropriate to tell MVA and not PBM, about the extent of PBM’s assets. It is, in my judgement, inevitable that when MVA seeks legal advice, as she must, in respect of the prenuptial agreement, those advising her are going to want to know how much PBM is worth. Whilst I am not saying that would be impossible to have an effective prenuptial agreement without disclosure, it is clear, at least on the present state of the law, that full and frank financial disclosure is regarded as one of the key building blocks of a successful prenuptial agreement. In this regard I do not agree with the statement contained in paragraph 34 of Ms Fottrell’s written submissions that “it is common ground and established law that PBM cannot enter into a PNA if he cannot disclose his assets to MVA”. I would not go so far as to say that it would be impossible to have a valid prenuptial agreement without disclosure but certainly I agree that disclosure is generally regarded as being necessary. In discussion in court, Ms Fottrell accepted that she may have over stated things, but we are all agreed that, in a perfect world, full disclosure would form part of the negotiations necessary to a binding prenuptial agreement.

Dr Layton’s evidence strongly supports PBM having capacity to enter into a prenuptial agreement. The Official Solicitor submits, and I accept, that PBM’s discussions with Dr Layton clearly evidence his ability to understand, retain, use and weigh the information relevant to this decision, and there is clearly a recognition on PBM’s part for a need for professional support in making such a decision. I therefore declare that PBM has capacity to enter into a prenuptial agreement. I accept the Official Solicitor’s submission that there is nothing inconsistent in saying that PBM has capacity to make a decision about a prenuptial agreement but yet may lack capacity to manage his property and affairs generally on an ongoing basis. Understanding and negotiating (with advice) and entering in to a pre nuptial agreement is a one off event, albeit that the effect of the contract negotiated is always binding. Managing property and affairs

A statutory will authorised by the Court of Protection dated 1 June 2012 is in place. Marriage will revoke that will. An issue potentially arises in this case as to whether I should apply the MCA 2005 test or the common law principle arising from Banks v Goodfellow (1870) LR5 QB 549. However, Dr Layton’s report shows that PBM clearly has testamentary capacity, irrespective of the precise test, and it is not therefore necessary for me to resolve the potential conflict between those two tests. The narrative description of PBM’s discussions with Dr Layton on this issue clearly demonstrate that PBM has the ability to understand, retain, use and weigh the information relevant to the decision.

Although PBM makes it clear that he wishes to manage his property and affairs himself, no application is made at this stage to persuade me that PBM has capacity at the present time, to manage and administer his property and affairs. It has been agreed by all that further steps should be taken by the Deputy to assist PBM in developing the skills that he needs to manage his property and affairs. The steps will include:

The Deputy will work with PBM with a view to identifying a business (or equivalent) in which PBM can play a significant role, if necessary with support. The Official Solicitor asks me to make an order that would permit the Deputy, without having to revert to the court, to purchase freehold or leasehold land in England and Wales in PBM’s name, provided of course that the Deputy is satisfied that the proposed purchase is at market value and in PBM’s best interests. In the absence of any opposition, and based on all that I have seen and heard, I am happy to endorse the Official Solicitor’s view and to make the order sought.

The Official Solicitor’s primary position is that if PBM has capacity to make a will and/or enter into a prenuptial agreement, he is entitled to sufficient information about his assets in order to make those decisions for himself. The Official Solicitor asks me to declare under section 15(1)(c)MCA 2005 that he has capacity to decide whether he should be told the extent of his assets.

Initially, Dr Layton concluded that PBM did not have capacity to enter into a prenuptial agreement but he changed his mind in his second report. Dr Layton addresses the question of whether PBM should know the extent of his assets. Dr Layton is of the view that PBM has capacity in the context of requiring knowledge of his assets in order to conclude a prenuptial agreement. Dr Layton maintained this view when questioned in writing.

The Deputy has concerns regarding PBM’s welfare in the event that he has knowledge of his assets. The Deputy and the case manager, , have both raised issues as to PBM’s financial vulnerability. Given how well they know PBM, and their long experience of working with him, their view is plainly of considerable importance. Dr Layton was keen to point out, however, the difference between lacking capacity and being vulnerable. Vulnerability is not enough to justify the withholding of the information.

I have been referred to the case of EXB v FDZ and others [2018] EWHC 3456 (QB) where Foskett J concluded that P should not be informed of the amount of a damages award. The judge’s approach was to consider first, whether P had capacity to make a decision about whether he should be told the value of his award; and secondly, on the basis that he did not, whether disclosure would be in his best interests. The Official Solicitor, through Mr Rees QC, submits that the approach taken by Foskett J is artificial and should not be followed. Alternatively, says Mr Rees, this case should be distinguished as, in the instant case, disclosure of the information in question is required in order to enable PBM to take a decision which he has the necessary capacity to undertake (i.e. entering into a prenuptial agreement).

Mr Rees submits that a decision as to whether a person should be told about the value of his assets is a wholly artificial one. A capacitous person, he submits, does not ask themselves whether they should be made aware of the extent of their assets. If they do not have the relevant knowledge to hand, they have a right to obtain that information should they wish to obtain it.

Mr Rees asks me to go further still: he submits that where a person has capacity to take a decision and wishes to make that decision, that person must be entitled to any information belonging to them which they require to make that decision. I am not prepared to go so far as to say that Foskett J was wrong, nor am I prepared to say that I disagree with him. It is not necessary for me to do so for the purposes of this case. I do not accept that a valid prenuptial agreement cannot be made without knowledge of the value of one’s assets. Accordingly, the premise of Mr Rees’s submission falls away. I can readily envisage a situation where the judge could decide that somebody has the capacity to enter into a prenuptial agreement but does not have the capacity to know about the extent of their assets. I have already highlighted, above, the obvious disadvantages in this factual state of affairs which is, I suggest, one that we should strive to avoid if at all possible.

Moreover, and in any event, it is perfectly possible, as a matter of law, for me to conclude that PBM does not have the capacity to be informed of the extent of his assets but that, because of the curious exigencies of this case, namely the desire to enter into prenuptial agreement, he should be so informed. However, here we are striving into semantic realms when we do not need to tread.

In spite of the properly articulated argument on behalf of the Deputy, I have formed the clear conclusion, based on the evidence of Dr Layton as well as everything that I have read, that PBM does have the capacity to be informed about the extent of his assets. It is unnecessary for me to decide whether the test is whether PBM can decide whether he should ask about the extent of his assets or whether he should be told. To me this is bordering on a semantic absurdity. Plainly, the moment one is entitled to know about the extent of one’s assets one is almost bound to make the enquiry. I do not think that the distinction is one which will burden people in the real world.

If, contrary to the above, I am incorrect in deciding the semantic issue discussed above, I am, in any event, satisfied that it is in PBM’s best interest to be provided with the information. I say this because:

When PBM is informed of the extent of his assets it is important that he is supported emotionally, as well as assisted to build and develop life skills.

As stated above, I invited the LA to consider what, if any, duties it owes to PBM pursuant to the Social Services and Well-being Wales Act 2014 (henceforth “the Act”). For the chronological analysis that follows I express my sincere thanks to David Hughes, counsel for the LA.

S19 of the Act reads as follows:

S126 reads as follows:

The 2014 Act was preceded by a White Paper, “Sustainable Social Services for Wales: a Framework for Action (Footnote: ²)”, published in 2011. The White Paper identified a number of principles that would guide it, of which the following are perhaps most relevant to PBM’s position:

The Bill that became the Act, when introduced into the Assembly, was accompanied by an Explanatory Memorandum (“EM”). The Bill was said to provide “…the statutory framework to deliver the Welsh Government’s commitment to integrate social services to support people of all ages, and support people as part of families and communities”.

The purpose and intended effect of the Bill were dealt with in Part 1.3 of the EM:

The EM later states that:

The EM recognises that the Bill would expand the duties of local authorities and health boards, saying:

The EM distinguishes the Bill’s approach – to look at individuals as people and try to align arrangements and processes from that taken by legislation elsewhere – from that taken by legislation elsewhere, which looks at different groups differently:

The EM goes on to identify the Bill as providing for

The EM identifies, insofar as safeguarding is concerned, the following;

The EM is relatively brief about clause 10. It says that, where it appears to a local authority that an adult may have needs for care and support, the LA has a duty to assess whether the adult has those needs and, if so, what the needs are. It goes on to say that the assessment is to be focussed on the outcomes the adult wishes to achieve in his or her daily life and the extent to which the provision of care and support contributes to those outcomes.

The duty to assess the needs of an adult are found in clause 16 of the amended Bill. There was a revised EM issued, which addressed clause 16 at para 244. It does not materially differ from the earlier EM. Adults at risk are dealt with in clause 116 of the amended Bill. The EM deals with it at paras 441-444.

The Local Authority has filed and served a statement by PBM’s allocated social worker, dated 4 January 2019. In her statement, she sets out her involvement on behalf of the Local Authority. She sets out that she considers that, although she is not clear why PBM needs the level of care package that he has, his needs are “without question” being met by the current package of care and support.

There is also an assessment, completed on 3 January 2019. The assessment records that it is for the purpose of considering what needs for care and support PBM has, and how those can best be met. The assessment records PBM’s apparent resentment of the care package that he currently has, which he views as unnecessary and, it would seem unduly limiting on him. He wants to be able to manage his own finances (despite difficulty sticking to what would appear to be a not ungenerous income for daily expenses), saying that he would engage with support services to help him to do so.

The assessment notes that PBM distrusts social services. It is based on the premise that he has been subject to financial abuse. It concludes that PBM is able to recognise some vulnerability, and take some steps to protect himself, but that, were he to have control over all his finances, the risk of exploitation would increase significantly.

The assessment records that there is an ongoing safeguarding investigation. It records also that there are no care and support needs to be met by the LA.

Considering the above with s19, the LA’s position is that it has assessed PBM’s needs, as required by s19(1). It has identified the outcomes that PBM wishes to achieve in dayto-day life, and has concluded that there is nothing additional that could be done to contribute to achieving those outcomes (principally control of his own finances, and the ability to take decisions that flow from that) or otherwise meet his needs. Put simply, the LA asserts that his needs are being met (indeed, possibly exceeded) by his current package.

The LA has accepted that it owes a duty under s126, and whilst it would say that it has complied with its s126(2)(a) – PBM’s allocated social worker has considered whether any action should be taken, and has determined that the deputy arrangement in place is sufficient and should continue – it accepts that its compliance with its s126(2) duty could be more robust (Footnote: ³). Mr Hughes has assured the court that the need for this to be so will be communicated to the relevant staff, and the LA has apologised to all parties, and the Court, for the lack of robustness in this to date. The LA has agreed to prepare a statement setting out the way in which it will more robustly comply with its s126(2) obligations.

The LA has emphasised that it is not seeking to wash its hands of its duties towards PBM. It takes the view that PBM’s needs are being met by his current arrangements. I agree. The LA has said that it will review its position in the light of any new information it receives, or any representations made by PBM or his representatives.

I end by expressing the sincere hope that PBM’s life will continue to improve and that he and MVA will have the successful marriage that they both wish for and deserve.