Social Welfare Update: Damages of £143,000 for unlawful deprivation of liberty of incapacitous care home resident upheld

The comparators for damages for unlawful deprivation of liberty of persons lacking mental capacity are few. In Essex County Council v RF & others [2015] EWCOP 1, DJ Mort made a distinction between procedural and substantive breaches and where he found the local authority ‘totally inadequate and their failings significant’, assessed monthly damages between £3000 - £4000 over a period of at least 13 months. In the case of Emile, DJ Beckley awarded damages against the London Borough of Haringey for a period of almost 8 years’ unlawful deprivation of liberty in the sum of £143,000.00. The local authority was granted permission, out of time, to appeal. The decision of HHJ Saggerson was handed down on 18 December 2020. The transcript is available on Mental Health Law Online. 

The Facts

On 10 October 2008 the local authority placed Irene Emile in a care home in order to safeguard her. Previously Mrs Emile had been living at the matrimonial home with her husband but both suffered from dementia and this had caused Mr Emile to assault his wife more than once. Mrs Emile remained at the care home until 8 March 2016 when she was moved to a nursing home where she died on 27 August 2019.

Mr Emile had died in February 2013 at which point the matrimonial home fell to be considered as part of a financial assessment, the family having paid Mrs Emile’s care home fees prior to that point. The family did not co-operate with the financial assessment and the care home fees were not paid between 16 February 2013 and 5 June 2017 (the date on which the Mrs Emile secured continuing healthcare funding) and were pursued by the local authority. Mrs Emile defended through her daughter and deputy acting as her litigation friend (who continued as the representative of her estate after her death), stating the fees did not fall to be paid due to the fact Mrs Emile had been wrongly deprived of her liberty and counterclaiming for damages. 

A deprivation of liberty enquiry had not been undertaken until September 2015. A standard authorisation of deprivation of liberty was eventually granted on 15 August 2016 when Mrs Emile was living at the nursing home. DJ Beckley found that Mrs Emile lacked capacity to make decisions about where to live and receive care from the time of her initial placement in October 2008 – a finding which the local authority ultimately accepted and did not appeal. 

DJ Beckley handed down judgment on 8 November 2019 and:-
a. allowed the local authority’s claim for unpaid care fees in the sum of £80,913.38 
(as a debt for the first period and as a set off for the second period); 
b. awarded no interest on that sum; 
c. awarded Mrs Emile the sum of £130,000 on the counterclaim for damages for 
unlawful detention for the entire period claimed plus a 10% uplift based on Simmons v 
Castle [2013] 1 WLR 1252 (£143,000.00); 
d. set the two sums off against each other and ordered that the local authority pay the 
Defendant the sum of £62,086.62; 
e. Ordered  no order for costs up to 7 May 2018 but that the local 
authority pays the Defendant’s costs thereafter. 

The local authority appealed on four grounds:-
i. Quantum of damages – the award should have been nominal or in any event was excessive
ii. The ruling on the construction and operation of s.69(2) Care Act 2014 was wrong
iii. Interest was wrongly not added
iv. The costs order. 

Judgment on the appeal

HHJ Saggerson affirmed DJ Beckley’s judgment in all respects.

‘Generous as the award was, I can identify no error of law or principle in the District Judge’s approach nor do I conclude that it is manifestly excessive or disproportionate’. [para 31].

Specifically the Judge found that:-  

‘Central to the District Judge’s approach on the facts was the failure of the local authority to comply with the provisions of the Mental Capacity Act 2005, particularly the best interests requirement in Schedule A1 and he was entitled to conclude that the local authority’s inadequate approach to capacity was the real cause of its failure, as he found, to consider alternative and less restrictive accommodation and care options. Accordingly, this was not a nominal damages case.’  [para 15]

Further, the Judge found that the District Judge had considered the evidence on both sides, 

‘There were options short of (or other than) residential care, so the District Judge found, on the basis of the family’s evidence that he accepted, that were not fully considered by the local authority. He decided that this all derived from the fact that the local authority thought the Defendant had capacity to make her own residential decisions rather than a conscientious consideration of less intrusive options including family options’. [para 19]

The Judge stated that DJ Beckley was entitled to proceed on the basis that the local authority’s failures to comply with the Mental Capacity Act 2005, particularly in respect of the best interests requirement were substantial and causative of harm and were more than mere technicalities and that this was therefore not a ‘nominal damages’ case.

The Judge found no basis to criticise DJ Beckley’s approach referring to the burden on the local authority to demonstrate that care home residence was inevitable, and the fact that Mrs Emile’s position was not reviewed at all between 2010 and 2016.  

In terms of quantum, the Judge stated that the test on appeal – whether the award was so disproportionate to the harm suffered as to warrant its being set aside – was not met. Rather, 

‘The District Judge was not only entitled, but obliged, to take into account the fact that as a result of the local authority’s failures the Defendant’s freedom was unlawfully compromised for the greater part of the last decade of her life where less intrusive options of accommodation and care should have been considered’.  [para 28]

The second ground of appeal concerned s.69(2) of the Care Act 2014 (which states that care charges cannot be recovered as a debt “in a case where a deferred payment agreement could…be entered into, unless (a) the local authority has sought to enter into such an agreement with the adult from whom the sum is due, and (b) the adult has refused), the application of which the Judge found to be fact sensitive. 

The local authority relied upon part of a letter it sent in March 2017 which read, “It may be possible to defer part of the payment in accordance with section 34 of the 2014 Act … please let me know if you would like to explore this option”.  No response was received. 

The Judge found:

‘The District Judge was entitled to conclude as he did that this extract from a much longer letter about a variety of matters was not sufficient to constitute the seeking of a deferred payment agreement’ [para 39].

Interest pursuant to s.69 County Courts Act 1984 was held to be a matter of judicial discretion and HHJ Saggerson saw no reason to interfere with DJ Beckley’s decision not to award interest for fees derived from periods of unlawful detention. Likewise, the Judge found DJ Beckley’s costs order beyond reproach.

Comment

• This case illustrates that damages for unlawful deprivation of liberty will not automatically be considered as ‘nominal’ [Bostridge v Oxleas NHS Trust [2015] EWCA Civ 79] on the basis that P was uncomplaining. This judgment, affirming DJ Beckley’s approach, is welcome, demonstrating the gravity of an unlawful deprivation of liberty.
• Whilst the period of Mrs Emile’s deprivation included a period before the UKSC’s ruling in Cheshire West & Chester Council v P [2014] UKSC 19, this case confirms that had no bearing on how damages should be awarded (para 31), thus reflecting the true scope of the concept of deprivation of liberty in relation to persons lacking mental capacity.
• Although HHJ Saggerson viewed the damages award as generous, there is a salutary lesson within it to local authorities that the capacity and residence and care arrangements of those whom they place in care homes, must be addressed and regularly reviewed.