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Adult safeguarding and the Anti-social behaviour, Crime and Policing Act 2014

Kevin Chan explains how his local authority recently used the Anti-social Behaviour, Crime and Policing Act 2014 to safeguard a vulnerable man from abuse using a civil injunction.

In circumstances, where a local authority becomes aware of a serious risk to a vulnerable person who has capacity and is reluctant to cooperate due to emotional or other reasons the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) may provide a useful legal framework in responding to such difficult circumstances.  A recent case involving a local authority provides a good example of how the 2014 Act can form an important part of a local authority’s safeguarding ‘toolkit’.

Background

P, a gentleman in his 70’s, was subject to a local authority safeguarding investigation following a brutal assault by a relative in which he was subjected to strangulation, punching and kicking. P was admitted to hospital, but discharged himself and was unwilling to engage with statutory services as he feared reprisal. This incident had been the latest in a long history of emotional, financial and physical abuse by the relative.

Social workers had found P, who had health needs, to be living alone in a severely impoverished and neglected state and evidently afraid of the relative; however he steadfastly refused offers of assistance both from social services and the Police on the basis that he wanted to protect the relative. P’s motivation to protect the relative was set against the background of significant fear: he genuinely believed that he and his pets would be killed and his house set on fire in retribution. The relative would visit, often to extort money, and P would fear reprisal if he didn’t allow him access.

Following arrest of the relative for assault on P and a short sentence of imprisonment, the Police were granted a Domestic Violence Protection Order (DVPO) pursuant to s.27 of the Crime and Security Act 2010 for the maximum duration of 28 days against the relative. The DVPO prohibited the relative from using or threatening violence, intimidation, harassing or contacting P. Subsequently, P’s health and wellbeing appeared to improve during this period. Despite this improvement P refused offers of respite accommodation for fear of ending up in 24-hour care.

The multidisciplinary team of professionals considered that a highly serious and likely risk of harm to P would persist beyond the expiration of the DVPO; however its safeguarding measures by way of legal options were limited and exacerbated by P’s capacitous refusals of proposed assistance and interventions. There was insufficient evidence to doubt P’s capacity and therefore no route into the Court of Protection. Equally P’s reluctance to legally oppose his relative’s abuse meant that a non-molestation order pursuant to the Family Law Act 1996 or use of an injunction pursuant to the Protection from Harassment Act 1997 would not be feasible. Therefore the initial legal strategy was to consider declaratory relief by way of the High Court’s Inherent Jurisdiction which had recently been demonstrated, in similar circumstances, in the case of Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) concerning undue influence and coercion which would require an expert’s assessment of P’s capacity being ‘sapped and overborne’ by coercion or undue influence. This was likely to take some time and there were doubts that P would engage with the capacity assessment.

Adult Safeguarding and the Anti-social Behaviour, Crime and Policing Act 2014

Consideration was thus given to use of the 2014 Act. It was considered that this provided an easier and quicker route for the local authority to seek an interim injunction than by using the Inherent Jurisdiction within the tight timescales prior to the expiration of the DVPO.

In particular, sections 1, 2 and 7 of the Act provide (emphasis added):

1. Power to grant injunctions

(1) A court may grant an injunction under this section against a person aged 10 or over (“the respondent”) if two conditions are met.

(2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour.

(3) The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.

(4) An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—

(a) prohibit the respondent from doing anything described in the injunction;

(b) require the respondent to do anything described in the injunction.

. . .

2. Meaning of “anti-social behaviour”

(1) In this Part “anti-social behaviour” means—

(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,

. . .

7. Interim injunctions

(1) This section applies where the court adjourns the hearing of an application (whether made with notice or without) for an injunction under section 1.

(2) The court may grant an injunction under that section lasting until the final hearing of the application or until further order (an “interim injunction”) if the court thinks it just to do so.

. . .

The injunction powers of the 2014 Act had been introduced to replace the older anti-social behaviour orders and injunctions contained in the Housing Act 1996; however it incorporated different and separate legal tests for housing-related and non-housing-related injunctions. Injunctions can last for an indefinite or fixed period and, unlike previous statutory injunctive remedies, can include a prescriptive element, for example in ordering the respondent to attend a course. A power of arrest, allowing for an arrest without a warrant can be attached to the order for anti-social behaviour that involve violence or threats of violence or where there is a significant risk of harm to other persons. Breaches are a civil offence without the criminal burden of proof and are punishable by up to two years imprisonment and/or an unlimited fine. The 2014 Act is supplemented by a Home Office statutory guidance: ‘Anti-social Behaviour Powers – Statutory Guidance for Frontline Professionals’ (updated August 2019).

The local authority successfully obtained an urgent hearing before a District Judge listed on the date of the expiration of the DVPO following a without-notice application consisting of a Part 8 claim form, grounds of support, draft order and a comprehensive statement including eleven appendices detailing the involvement of all agencies. An interim order was granted for five weeks prohibiting assault, threats to assault, causing or encouraging others to assault or threaten P; contact; coming within 50 metres of P’s property; persuading or coercing P to go with the respondent without permission of the applicant; interference with any care and support to P; requesting money and interference with P’s belongings. The order also contained a power of arrest which made it explicit that an arrest without warrant could be made upon reasonable suspicion of breach.

Neither P nor his relative, both respondents to the proceedings, provided statements or attended any hearings despite being notified of subsequent hearings. The relative was served with a copy of the injunction and power of arrest using a process server.

A further six-week injunction was granted to allow for further evidence gathering and provision of support to P whilst it was made clear to the court that the local authority had in contemplation as its backstop the protective powers of the Inherent Jurisdiction. No breaches were detected and significant improvements in P’s engagement and physical and mental health were noticed; this combined with significant new hearsay evidence provided anonymously by concerned members of the public all meant that a final injunction order for 12 months was eventually granted. (Aptly, in line with the ethos of the 2014 Act, the injunction also indirectly benefited the local community who had expressed their own fear of the relative).

Conclusion

The use of the Act meant that an effective legal safeguard was crucially obtained in a timely manner. In contrast, the use of the Inherent Jurisdiction would have likely entailed delay as necessary but complex expert assessment was undertaken in regards to undue influence or coercion impairing P’s capacity before an application could be made; this could also have been hampered by P’s reluctance to engage with professionals. Despite the Meyers case being similar in its facts, Meyers also highlighted the risks of seeking assistance of the broad but unpredictable powers of the Inherent Jurisdiction which should be ‘facilitative rather than dictatorial’ in its approach (A Local Authority v DL [2012] EWCA Civ 253, at [67]) and used ‘sparingly’ (Meyers, at [42]). Such cases also inevitably carry the financial burden of expert input, which although providing key evidence, can affect a case adversely by the quality of the assessment undertaken.

The Act’s legal test of ‘just and convenient’, arguably a simpler and lower threshold than other remedies considered, made it easier to obtain an injunction. However, against this ostensibly simple consideration, and contrasted in sharp relief in cases such as this, where the person is ambivalent or refusing to seek help and protection, there is also the necessary delicate balancing of P’s Convention Article 8 rights and the local authority’s positive duty to uphold his Article 2 rights. In this regard, the absence of the possibility of P being moved by the powers of the 2014 Act suggests its use may be a less restrictive approach in relation to P’s rights and freedom; which was all the more important in light of P’s consistent and steadfast wish to remain living in his life-long residence. Equally the use of the Inherent Jurisdiction in all likelihood, as seen sadly all too often in adult safeguarding, may have resulted in the victim removed from their home and taken against their wishes to a place of safety. In the circumstances, the injunction was a proportionate response to both the likelihood and severity of the risks faced by P but also in relation to the interference of his rights and freedom.

Although the 2014 Act’s injunctive powers in this case provided an invaluable safeguarding tool, its primary weakness, as with any injunction, rested upon the quantity and quality of the monitoring for any breaches; and therefore close working with the Police and other agencies was also essential.

In conclusion, the 2014 Act can prove to be a highly effective, cost-effective, accessible and a statutory alternative to resorting to declaratory relief by way of the Inherent Jurisdiction in safeguarding vulnerable persons, even in the most serious of cases.

Kevin Chan is a legal assistant and unregistered barrister at Knowsley Council. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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