Somerset Council social services unlawfully deprived a vulnerable disabled adult of her right to a home life, a court has found.
The disabled woman, who cannot be named for legal reasons and is simply known as P, was deprived of her liberty and human rights for a period of thirteen months.
P’s mother went on holiday for two weeks in 2013, leaving her disabled daughter in respite care. Upon returning from holiday she discovered that Somerset Council had decided to keep P in respite care, after bruising was discovered on her chest.
The Council’s decision relied on unsubstantiated allegations that the bruising had been caused within the home environment. They failed to consider other possible causes for the bruising, such as P being observed hitting herself and taking a member of staff to ground whilst out on a school trip.
P was also not given an opportunity to explain how the bruising had occurred. She is 18 years of age and has severe autism and learning disability.
The court established that Somerset Council social services failed to properly investigate evidence or communicate all the facts to the assessing medical staff.
And the Council had also failed to put correct procedures in place, which would have allowed the mother to appeal the decision when she returned from holiday.
P’s mother wasn’t informed that she could have appealed directly to the Court of Protection, meaning she was unable to mount a legal challenge and could not claim legal aid.
Butler & Co solicitors took the case on a pro-bono basis for more than six months.
Following a further application to the court, P’s mother was finally allowed to apply for non means tested legal aid.
The mother, with support from Butler & Co solicitors, successfully challenged the claim that the bruising on her daughter’s chest had been caused at home.
She also expressed concern that the accommodation chosen for the respite care did not meet her daughters complex needs. Judge Marston agreed that this should have been “stunningly obvious”.
In delivering his judgment, Judge Marston criticised the Council’s systematic failures and mis-guided philosophies.
The Council was also criticised for pursuing an unsubstantiated case and refusing to drop the allegations, and now face a landmark penalty which will send a strong warning to other local authorities.
Thirteen months after being removed from her family, P is now back at home.
Catrin Blake, a solicitor with Butler & Co solicitors who represented the mother, said:
“Parents and family members must not be afraid to challenge what is said by social workers.
“The adult social care system is incredibly stretched and mistakes do happen from time to time.
“A crucial feature of this case was that the council’s social workers failed to follow the correct legal procedure, and they did not inform the mother that she had a right to go to the Court of Protection to challenge the Council’s decision.
“Consequently, it was not until the council brought separate legal proceedings some months later that the mother was prompted to obtain legal advice.”
Catrin added: “Anyone who believes that a vulnerable person is being retained in care unlawfully, should seek advice from a solicitor who specialises in Court of Protection law. Legal aid is often available to cover advice and representation in such cases.”
Lessons to be learned
“This case has been described as one of the most serious cases of deprivation of liberty that the Court of Protection has had to deal with.
“Legal costs are not usually awarded in Court of Protection cases, and even less frequently on an indemnity basis where costs need only have been reasonably incurred and need not be proportionate.
“His Honour Judge Marston’s decision to award costs, on an indemnity basis, for this complex and lengthy case, is a landmark decision which has a punitive impact on the Local Authority following what was described as a “significant degree of unreasonableness” on their part.
“It will no doubt send a strong message to other councils not to repeat such a mistake.
“The case highlights a clear lack of understanding on the part of the council into this crucial area of law and procedure, a lack of understanding which led to a vulnerable adult being deprived of her liberty and separated from her family.
“Local authorities need to invest in better training and monitoring for their staff. Since the Cheshire West case, this has become a fast-moving area of law and staff in social services and legal teams need to keep up-to-date with developments on a regular basis.”
A Somerset County Council spokesperson said:
“We accept Judge Marston’s ruling and comments. We have apologised to the family for the distress our actions caused and are working closely with them to provide the right care and support for their daughter now and in the future.
“We have also taken urgent steps to ensure that all Adult Social Care staff learn from this case. We continue to train and monitor our staff, learning from this and any other national judgments.”
Last updated at 14:47 on 25 September 2015 to include a comment from Somerset Council.