Ben*, a man in his thirties, has cerebral palsy from a brain injury at birth. He was living with his mother, who acted as his full-time carer. Despite attempts to put arrangements in place, he wasn’t getting any external support despite asking to be supported by carers his own age.
Safeguarding concerns had been expressed by his financial deputy, his advocate and case manager. A Court Visitor described the relationship between Ben and his mother as “abusive”.
Ben’s advocate and deputy were concerned that Ben’s mother showed signs of coercive controlling behaviour, and the arrangements amounted to a deprivation of Ben’s liberty.
We were instructed by Ben’s advocate (with the support of his deputy) and issued proceedings in the Court of Protection on Ben’s behalf.
Just over a year later, Ben was living in his own property, supported 24/7 by a team of carers funded by the local authority. He still has a relationship with his mother, supported by a contract of expectations, and lives a full and active life.
The Issue
Ben’s mother had cared for him since he was a child. Believing that Ben was unable to cope without her help in all aspects of his life, his mother allowed him very little independence.
She conducted personal care for Ben, went with him on all trips out of the house, and made most of his day-to-day decisions. Ben was socially isolated, and he was anxious to engage in conversation with his mother there. He would often look to his mother to speak for him.
Ben owned an adapted property that could meet his needs and enable his independence, which had been purchased by his deputy years previously following a personal injury claim. However, he had never moved to this property.
Suggestions that Ben should live away from his mum were met positively at first, but then he appeared to change his mind following his mother’s influence.
Contact with professionals working to support Ben were also frequently blocked by his mother. Ben requested help to gain an independent life.
Professionals who knew Ben believed he didn’t have capacity to make decisions about his residence and care, but this had never been assessed.
What we did
We wrote to the local authority to inform them that we considered Ben’s circumstances to amount to a deprivation of his liberty and inviting them to make an application to the Court of Protection.
The local authority declined to issue an application. Our Public Law and Human Rights team issued the application in the Court of Protection on Ben’s behalf instead, seeking declarations regarding Ben’s capacity to make decisions about his residence, care and contact with others. We also asked them to consider whether his current arrangements were in his best interests.
The initial application to the Court of Protection was made without notice to Ben’s mother, due to concerns that she may prevent professionals from seeing Ben upon notice of the application.
The application was approved by the Court of Protection and through a collaborative approach and risk management planning with the local authority, Ben’s mother was served papers and added as a party with her own legal representation. She agreed to enter a contract of expectations which protected Ben’s rights to access professionals and meet with them independently.
Expert evidence was obtained in respect of Ben’s capacity to make the relevant decisions, and further evidence was obtained in the form of witness statements, medical records, and assessments.
Most importantly, Ben’s voice was made centre of the proceedings. He expressed a clear and consistent wish to live more independently, move to his specialised property, and have greater community access.
The Outcome
The Court of Protection declared that Ben lacked capacity to make decisions about residence, care, and contact. The parties eventually agreed that it was in Ben’s best interests to live independently from his mother, at his specialised property with a package of support, in line with his wishes and feelings to do so.
The Court of Protection authorised this and following arguments by Ben’s legal representatives, the local authority agreed to fund the costs of Ben’s care package. They also agreed to fund the costs of his advocate.
In January 2023, Ben moved full-time into the property he owned. His life is becoming increasingly independent, and he has enjoyed decorating his house, making use of his games room, and taking frequent trips and holidays.
Ben has gone on to climb mount Snowden, acted in a pantomime, and is a regular karaoke star.
Ben stated “Some days I wake up and just say wow. I’ve got so much independence now… I feel so lucky here, I pinch myself…I’m happy now. I know I’ve got you here, all the support around me, I can reach out for help, I don’t feel like I have to do it all on my own.”
*Not real name used
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