On 14 and 15 Dec 2016, the Supreme Court heard an appeal relating to a local authority’s refusal to fund home visits for the appellant’s son, N, under his care package. N suffers from complex disabilities and lacks the capacity to make relevant decisions for himself. When N was 8 years old he was made the subject of a care order on the application of the local authority. Shortly after his 18th birthday, N was moved from his residential children’s placement to an adult residential placement. ACCG, the respondent, took over responsibility for the funding of the placement when he turned 18.

The respondent originally sought a final order in the Court of Protection under the Mental Capacity Act 2005, s 16 (2)(a). It sought that N reside in such accommodation and receive education as directed, and that contact with his family members be regulated and supervised by ACCG. The Court of Protection declined to undertake an assessment of whether home visits were in the best interests of N and accepted ACCG’s submission that contact at the family home was not an available option now, or in the foreseeable future.

Decision of the Court of Appeal

Mr and Mrs N appealed the decision, however the Court of Appeal held that the preceding judgment was correct both in conclusion and the reasoning given. The Court confirmed that the Court of Protection could not compel a public authority to agree to a care plan which the authority is unwilling to implement. Four reasons were given as to why. Firstly, the Court contended that it was not the proper function of the Court of Protection to undertake a factual inquiry into an abstract issue that cannot affect the outcome of the proceedings. Secondly, it was not appropriate to generate a platform for future proceedings in the Administrative Court. Thirdly, to do so would confuse and overlap the separate principles which govern the Court of Protection and public authorities when exercising their different functions. Finally, doing so would risk exposing the public authority to “impermissible pressure”.

Similarly, the Court noted statements made in the former decision about the desire to avoid a situation where the Court of Protection would be required to make hypothetical best interests decisions, resulting in CCGs funding care packages or otherwise facing expensive judicial review proceedings. Following the decision in Cheshire West [2014] UKSC 19, the Court of Protection has been flooded with care decisions and arguably the practical implications would overstretch the Court.

On behalf of N it was contended that the Court of Protection did not have the jurisdiction to determine a human rights claim. The Court of Protection previously held that a claim under the Human Rights Act 1998, s 7 had not been made in proper form, and regardless of that the agreed facts could not conclude there had been a disproportionate interference with family life. Similarly, the consideration of MN’s art 8 rights were accommodated within an assessment under the Mental Capacity Act 2005, s 4. The Court of Appeal agreed with the judge’s analysis and held that the case of Re V [2004] EWCA Civ 54 was clear authority for the Court of Protection having jurisdiction to consider a human rights claim, noting the need for a s 7 claim to be clearly identified and pleaded.

Issues before the Supreme Court:

  1. Whether a commissioning body can, by its decision not to fund a particular option for contact, remove the jurisdiction of the Court of Protection to make a best interests decision about contact.
  2. Whether the failure to conduct a best interests assessment and/or determine the facts breached N’s rights under the ECHR to a fair trial and a family life.