Court of Protection: Costs order against local authority for delay in applying for review required under Re X order

The case highlights that late applications for court review required in Re X orders may result in liability for costs, under a departure from the usual rule of no order for costs in welfare proceedings. See Court of Protection Rules 2017, rules 19.3 and 19.5.

AT is a young man who has autism and learning difficulties. On 4 July 2016 the court authorized AT’s deprivation of liberty at his placement under a care plan arranged by LB Harrow.  The order required that Harrow apply for a review no later than 4 June 2017. An application was made late and was not for a review as required.

HHJ Hilder held that the local authority’s conduct before and during the proceedings justified an order that it paid one half of the Official Solicitor’s costs to be assessed if not agreed. 

The relevant conduct was:

• Failure to comply with the court order requiring it to apply for a review by 4 June 2017, and when it did make an application on 5 September 2017 it was not the application required, the court holding that:

“The purpose of the review requirement is to provide procedural safeguards to prevent arbitrary deprivation of liberty and so avoid a violation of the State’s positive obligations under the European Convention of Human Rights. If a local authority fails to comply with a requirement by court order to apply for review, the effectiveness of any safeguards is seriously undermined. Such conduct on the part of a public body cannot be overlooked.”

• Failure to serve case papers on the Official Solicitor as required by a court order, resulting in the need to vacate the first hearing listed; 
• The local authority’s approach in finalising the terms of the order made at one of the earlier hearings. The criticism here was that a wholly disproportionate amount of time had to be spent by AT’s representatives trying to agree the order with the local authority after the hearing because it was seeking to re-argue points already decided by the judge. 

Bethan Harris is a member of the Garden Court Chambers Court of Protection team.