Experts Successfully Challenge Local Authority Decision
Specialist public lawyers who successfully challenged a council’s decision to ‘unjustifiably’ restrict the amount of contact that an elderly married couple were allowed to have are calling on local authorities to not forget their core responsibilities on such matters.
Irwin Mitchell’s specialist Public Law team acted for SR, who lives in residential care and has a diagnosis of Alzheimer’s disease, via her litigation friend, , after the council imposed restrictions on the contact she could have with JR, her husband of 58 years.
The local authority took the step after having concerns regarding comments that JR was heard to have made in support of euthanasia, with the restrictions meaning he was unable to take his wife into the community without a chaperone.
JR and his family objected to the restrictions and the local authority failed to make an application to the Court of Protection in light of the dispute. The saga culminated in a two-day hearing where they and the council were able to put forward their views on the issue.
A judgment handed down in June concluded that the restrictions on contact should be lifted, with Her Honour Judge Buckingham stating “that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary.”
Katy Cowans, a specialist public lawyer at Irwin Mitchell’s Leeds office, said:
Expert Opinion“This case is significant as it is an important reminder that councils simply cannot impose restrictions on a person’s contact with relatives without the proper, lawful authorisation.
“Councils should always refer such matters to the Court of Protection at the earliest opportunity, yet this did not happen in this case.
“As such SR has been unlawfully prevented from spending quality time with her husband by the local authority – precious time which sadly can never be claimed back.” Katy Cowans - Associate Solicitor
SR had been placed in residential care in 2016 by the local authority due to concerns as to how the family was coping at home, and frequent requests were made to the local authority for SR to return to the family home.
While SR was in residential care, her husband would visit her twice a day where he would take her to the local park and for a walk around the home.
On May 2017, the local authority first imposed restrictions on the couple’s contact in lights of concerns they had over comments JR made in support of euthanasia.
The local authority informed the care home that JR was not permitted to take his wife out into the community without a chaperone due to the risk that he may pose to his wife. JR and his children objected to these restrictions and notified the local authority of those objections.
Despite there being a clear dispute in this case as to what was in SR’s best interests in relation to her residence, care and contact with others, the local authority failed to make an application to the Court of Protection.
Instead it imposed restrictions on SR’s contact with her husband without lawful authorisation whilst it engaged in a period of mediation between October 2017 and January 2018.
The local authority still failed to make an application to court after the family declined to engage in further mediation sessions in January 2018.
At an initial hearing related to the case, the local authority also submitted an oral application with no supporting evidence regarding the restrictions on contact between SR and JR.
Expert Opinion“The council’s decision to take this approach is also a concern as it meant that the judge involved felt she had no choice but to grant the application on an interim basis.
“This was because the local authority had provided no evidence and therefore she had to rely on the organisation’s judgement.” Katy Cowans - Associate Solicitor
Regarding JR’s comments at the centre of the reason for restrictions, HHJ Buckingham stated she accepted that they had given rise to ‘legitimate anxiety’ however she did not consider that:
'adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity.'
Expert Opinion“A case of this nature highlights a range of issues but clearly the most important is that a devoted husband and wife have had their contact limited for almost a year. The issues seen in this case simply cannot be allowed to happen again and lessons must be learned.” Katy Cowans - Associate Solicitor