Local authority ordered to pay 85% of costs of wasted Court of Protection hearing

In A Local Authority v ST (Costs application) [2022] EWCOP 11 (14 March 2022), Judge Burrows found the council exhibited conduct that fell below a proper standard, was unreasonable in pursuing the social media restrictions, and had failed to comply with a judge's directions order.

The ongoing proceedings concern an 18-year-old woman, referred to as Sarah by the judge, who has a diagnosis of mild learning disability and had been subject to emotional and physical abuse in the past.

As a result of her circumstances, the local authority successfully lodged an application to remove her to a place of safety and for her to be deprived of her liberty there.

Later, the local authority wished to restrict Sarah's use of social media, as it feared she would make contact with harmful people, perhaps engage in online activities and conversations that may cause her harm, and give away the address where she was residing, thereby exposing herself to a risk from her boyfriend.

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The judge scheduled an attended hearing for 3 March 2022, following a short remote hearing in which the Official Solicitor representing Sarah argued against the request.

The judge directed the local authority to file a previously ordered assessment of Sarah's capacity to make decisions as to her access to the internet and social media, alongside statements on its reasoned assessment of the risks and impacts of continued social media access for Sarah. These were to be filed by noon on 25 February 2022.

Three further deadlines were set out:

By 4pm Friday 25 February 2022, the applicant shall file and serve an updated and paginated court bundle;
by 4pm Monday 28 February 2022, the applicant shall file and serve a position statement;
by 4pm Tuesday 1 March 2022, the solicitors for [ST] shall file and serve a position statement.

The local authority failed to meet the deadlines. The social worker's statement should have been served before noon on 25 February 2022, but it was served just before 5 p.m. that day. The statement recorded that Sarah had been accessing Facebook and there had been no inappropriate posts.

"By close of business on 25 February 2022, it should have been clear to the LA that neither the capacity evidence nor the best interests evidence was compelling," the judge said. "Certainly, it would have seemed highly unlikely that a Court would find that Sarah lacked the capacity to make decisions around social media, and even if it did, that preventing her use of that media would be in her best interests."

The local authority's position statement, which was due at 4 pm on Monday 28 February 2022, was also handed in late. According to the judgement, the solicitor dealing with the case was occupied in court and "no one else stepped into his shoes".

On 1 March 2022, the Official Solicitor served their position statement on the local authority in compliance with the directions, but it was evident the author did not know what the local authority's position was.

The judge said: "Counsel for the LA was only instructed the next day, specifically to draft a position statement and appear at the hearing. That document was dated 2 March 2022 and was sent to the parties and the Court just before 5 pm on 2 March 2022. An earlier email from the LA had been sent to Sarah's solicitor, but she was occupied with a judicial visit I was paying to Sarah at the time. That position statement conceded that there was insufficient evidence to rebut the presumption of Sarah's capacity to make decisions about accessing the internet and social media."

"The attended hearing listed before me in Manchester with a day listing was therefore ineffective," he added.

In concluding, Judge Burrows found that the local authority "knew, or ought to have known" by 25 February that their case was weak.

He added: "The failure to serve an updated paginated bundle by 4 p.m. on 28 February also points to a lack of time. The social worker's witness statement was served late, however, just before the close of office hours, when it should have been served by noon that day. Had matters proceeded as they should, by Monday 28 February 2022, the LA should certainly have had a clear position, and that should have been the subject of their position statement that should have been served by 4 p.m. that afternoon. It was not.

"Instead the OS had to provide a position statement responding to the LA's unknown case. By the time the LA instructed counsel, the deadline for their position statement was long gone. [Counsel for the LA]'s position statement was sensible and reasonable in conceding the application. The problem is it was too late."

The judge added that at no stage did the local authority seek an extension to the timetable, or to vacate the 3 March hearing.

He said: "Should I describe these failings of the LA as conduct that fell below a proper standard? Or perhaps that it was unreasonable for them to continue to pursue a particular matter, namely social media restrictions, when the capacity and best interests evidence was clearly weak? Or should I point to the failure to comply with the directions order that had been made by the court with the parties' general agreement? I consider each of these factors to apply in this case. I am therefore satisfied it is appropriate to depart from the general rule."

The judge ordered the local authority to pay 85% of the costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022.

Adam Carey