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Damages for deprivation of liberty

Money iStock 000008683901XSmall 146x219The Court of Protection team at 39 Essex Street consider what can be learned from two damages settlements for deprivations of liberty.

The cases of A City Council v Mr and Mrs J [2013] and A Local Authority v Mr and Mrs D [2013] EWHC B34 (CoP) concern damages settlements for breaches of Article 5 ECHR. We have previously commented on the lack of publicly-available information about such settlements, which can make advising clients on either side of such disputes a rather tricky affair.

In the first case (a consent order approved by Peter Jackson J, to which Kevin Lloyd of Hogans has drawn our attention), Mrs J had apparently been placed in a care home with no Deprivation of Liberty Safeguards (DOLS) authorisation and no application to the Court of Protection made for a period of around three months. She accepted £1,000 in damages plus her costs of around £10,000.

In the second case, Mrs D, who suffered from Huntington’s Disease, had been prevented from returning home from a respite placement, and no DOLS or court authorisation had been obtained for the first six weeks of her continued stay. Subsequently, DOLS authorisations were put in place, but despite being made conditional on applications being made to the Court of Protection, no such application was made for a further six months.

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When the application was eventually made by the local authority, it was not identified to the court as an Article 5 case and so was not expedited. That resulted in a further four-month period when there was no DOL authorisation or court order in place at all. Ultimately following the commission of independent expert reports which supported a return home, the local authority agreed that Mrs D could return home without requiring a final hearing on the question.

The local authority made no admissions of liability, save for the four-month period after the issue of proceedings when there was no DOL authorisation or court order in place, but offered Mrs D £15,000 plus her costs, and Mr D £12,500 plus his costs, an offer which was approved by District Judge Mainwaring-Taylor on Mrs D’s behalf. In reviewing the limited jurisprudence upon damages, the District Judge noted that the sum of £15,000 was a reasonable sum, although towards the lower end of the range if the award approved in Steven Neary’s case of £35,000 was taken as the bench mark rather than the highwater mark.

Although the full facts of both cases are not known, it appears that in Mrs J’s case, the damages reflected procedural failures only in respect of her Article 5 rights. One imagines that if Mrs J’s deprivation of liberty had not been in her best interests, even for a period of three months, an appropriate damages award would have been considerably higher.

In Mrs D’s case, the larger amounts appear to reflect the fact that eventually, the local authority conceded that it was in Mrs D’s best interests to return home, and thus it was arguable that had the proper processes been followed, she would have returned home some 10 months earlier.

It is interesting to compare the settlement figures in these two cases with the Ombudsman decision (reported in December 2013) where a sum of £1,750 was paid to the couple who had been affected by the local authority’s maladministration, and £250 to their son. The local authority in that case at least avoided having to pay the legal costs involved, which for both Mrs J and Mrs D no doubt exceeded the damages figures by a significant degree.

This article was written by the Court of Protection team at 39 Essex Street.

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