Irwin Mitchell’s Public Law & Human Rights team were approached by the family of ‘Simon’, a young man with learning disabilities, after he had effectively been unlawfully ‘kidnapped’ by his local social services department and placed into care.
Simon, who was in his early 20s and lacked the mental ability to make decisions for himself, had lived at home with his mother and father for all his life. After looking at Simon’s care needs, social services raised a concern that Simon’s behaviour posed a risk to his mother, who was herself disabled. As a result, the family agreed to allow Simon to go into respite care for a short period while social services completed their review. However, once the agreed period for the respite came to an end, the social services team refused to allow Simon to return to his parents’ home, claiming that it was in his best interests for him to remain in care as a result of the concerns which had been raised.
Simon’s parents contacted Irwin Mitchell’s Public Law & Human Rights department, who wrote an urgent letter to the local authority’s legal team pointing out that they had failed to apply to the Court of Protection for a court order allowing them to remove Simon from the family home. The Council was therefore in breach of the Mental Capacity Act and placing Simon in care without a court order was also an unlawful breach of his human rights.
The Council responded immediately to the letter by allowing Simon to return home to his mother and father and the Council also agreed that it was in Simon’s best interests to continue to live with his parents.
Despite recent changes to the system, legal aid is still available for cases such as this, where a means test is carried out in relation to the disabled person and not their parents of other family members.
For expert advice on matters relating to mental capacity, the Court of Protection and deprivation of liberty, please contact Mathieu Culverhouse of Irwin Mitchell’s Public Law & Human Rights team on 0370 1500 100 or complete our enquiry form.
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