Court of Protection orders mother for present time to leave home owned by disabled son

A Court of Protection judge has ordered a mother to leave the home owned by her disabled adult son, finding it was not in his best interests for her to live in the same house “at the present time”.

Outlining the background to the case, which was heard in November 2023 but with judgment published on Bailii this week, His Honour Judge Burrows said the case was about a man in his 30s.

In 2018, the man (“S”) was the victim of a serious assault which, with an additional factor of clinical negligence, led to him being seriously disabled. He spends his waking hours mostly in an adapted wheelchair. He communicates, with some considerable difficulty, through a letter board.

The judge noted that as a result of the clinical negligence, S had received significant financial compensation, which meant he now owned and lived in a specially adapted bungalow, which he shared with his team of carers and his mother.

However, it was found by the judge that the mother’s behaviour was “such as to give rise to a risk of harm to S, in the form of suboptimal care, a toxic atmosphere and the risk of the breakdown of the care package.”

In her evidence, the mother admitted being intoxicated, leading to safeguarding reports from the ambulance service, in February 2021. There were further times of intoxication in October 2021 and September and October 2022. The mother admitted being intoxicated on 23 July 2023 and being abusive to a carer, Ms T.

Further, the mother admitted to threatening Mr WT, the lead care worker, in October 2023, and threatening to “cut his fingers and toes off” whilst she had been drinking, said the judge.

HHJ Burrows said: “I have left out the contested evidence and I am also mindful that [the mother] argues that MT, by his actions, has himself created a toxic atmosphere. I can believe that there is some truth in that even from a cursory reading of the text messages that have been placed in the bundle.”

He added: “I can well believe that there has been an unhealthy culture in S’s house. […] I can well imagine that such communications and attitudes could lead to conflict, nastiness and a shift of focus away from S’s care.”

The judge noted that the mother admitted she had a drink problem. Further, she admitted taking four times the proper dose of an antidepressant she had been prescribed.

The mother was seeing a psychologist or psychotherapist at the time of the hearing.

Counsel for the local authority submitted that it was in S’s best interests for there to be a six-month adjournment, during which the mother would remain in the house, subject to “strict conditions”, said the judge.

However, counsel on behalf of S submitted that for the mother to remain in the house during a six-month trial period while she was “grappling with her addiction problems”, as well as depression, was asking too much of her. Because of that, it was also taking too much of a risk with S’s welfare.

Considering the options available for a best interests decision, the judge noted that there was “no dispute” that S lacked the capacity to make the relevant decisions.

He said: “Important here is the need to ensure that S’s welfare is protected as best it can be. That means to try to ensure the consistent and effective administration of the care he needs, in an atmosphere that does not cause him harm.”

He added: “I must recognise his Article 8 rights to a private family life. Clearly, to remove his mother from his home would engage and interfere with those Article 8 rights.”

Balancing the best interests of S and his mother, the judge said: “For [the mother] to remain at the house for a six month probationary period is not neutral and with it goes the risk of the continuation of a toxic atmosphere, further inadequacy of rehabilitation, as well as the ever-present risk of care package breakdown. In other words, that would leave not enough staff to look after S, leading to him being moved to residential care as a matter of urgency. I think everybody would accept that that would be a disaster for him.

“[…] I have considered [the mother’s] rights under Article 8. I have also taken her own interests into my broad canvas of factors that have fed into this judgment. She suffered an unspeakable tragedy when S was injured. She has had to live with that since then. She has lived with him for a number of years. All this has led to her becoming depressed and dependent on substances. I do not think, as a matter of fact, that it is in her interests to live at S's home whilst she tackles her problems.”

HHJ Burrows concluded that it is not in S’s best interests for his mother to live in the same house at the present time.

He said: “I have considered her Article 8 rights. I am conscious that [the mother] will lose her home, but that she will receive assistance from the property and affairs deputy if she needs it, in funding herself in a new home.”

Finally, he added: “I will stop short, at this stage, unless I am invited to do so, of making an injunction. I believe that once the property and affairs deputy receives the best interests declaration I am making, she will serve [the mother] with a notice terminating her licence. I take [the mother] at her word that she will leave.

“And that is what should happen. She should be given a reasonable period to leave; in my judgment, that should be 14 days. Thereafter, steps must be taken to ensure that [the mother] and S can have a good relationship together, something along the lines of the restrictions that I have seen so far, but she must not, when entering his house, interfere with the care workers. It is vitally important that there is a maintenance of stability in the provision of care and that he is not caused the upset and distress that he has obviously been suffering and which is clear from the statements he has made to his legal representative.”

Lottie Winson