DO v LBH [2012] EWHC 4044 (Admin), [2012] MHLO 165

"I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings."



Neutral Citation Number: [2012] EWHC 4044 (Admin)




                            Royal Courts of Justice


                                London WC2A 2LL

                           Thursday, 23rd August 2012

                                  B e f o r e:

                           HIS HONOUR JUDGE JARMAN QC

                     (Sitting as a Deputy High Court Judge)


                       THE QUEEN ON THE APPLICATION OF DO





              Computer‑Aided Transcript of the Stenograph Notes of

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The Claimant was represented by his Litigation Friend (EC) and did not attend in

Mr D Holbrook (instructed by [LBH] Legal Service) appeared on behalf of
the Defendant

                                J U D G M E N T

                           (As Approved by the Court)

                                Crown copyright©

1.     THE DEPUTY JUDGE: I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other.

2.     As a number of applications have been made by EC, who appears before me this morning, I ordered her to be substituted as claimant in both proceedings, so that she is the sole claimant in those proceedings and I gave my reasons for that.

3.     I am using initials because there are ongoing Court of Protection proceedings in which all of the parties have been ordered to be identified by their initials. There is also a similar order in respect of DO in the third application. I also order the same procedure in these applications.

4.     All of the applications relate to the care of DO, who has been diagnosed with ongoing paranoid schizophrenic illness (although EC does not accept such diagnosis) and also a degenerative disorder.

5.     In recent years, EC says for 19 years, she has cared for her brother and for his children. In December 2011, however, LBH decided that his best interests were served by moving him into a care home in which his needs could be met. That was effective in December 2011, when DO was moved to A Court.

6.     EC completed an application for judicial review of that decision, on the basis that it was unlawful, and for interim relief. That application was filed on 23rd February 2012. I refer to it as the "first" claim.

7.     The applications were dismissed on 2nd March 2012 by Coulson J after hearing EC. The judge on that occasion certified the claim as wholly without merit and one which EC was not entitled to bring. She objected to her brother's residence at A Court and accordingly LBH had to apply to the Court of Protection for orders under the Mental Capacity Act 2012 in order to determine the capacity of DO to make personal welfare decisions and to decide where he should live and how he should be cared for. On 11th April 2012 an interim order was made by the judge of that court that DO should continue to be cared for at A Court until further order.

8.     On 11th May 2012 a second claim for judicial review, one of the claims before me, was signed by EC and filed in the Administrative Court, seeking orders, amongst a number of others, that she could continue to care for her brother because she is his legal carer and does not need the permission of the Court of Protection to exercise her duties. The case was put on a number of alternative legal bases, referring to various Articles of the European Convention of Human Rights, the Access to Justice Act, the Data Protection Act, the Mental Capacity Act, the Disability Legislation and the Health and Social Security Act. No acknowledgement of service was filed in that claim and no orders have yet been made.

9.     On 15th May 2012 there was a further hearing in the Court of Protection. LBH indicated that it was likely to apply to move DO to another placement and the court ordered the Official Solicitor to be joined as DO's Litigation Friend, the Official Solicitor having consented so to act.

10.     EC lodged an application for permission to appeal that decision. On 26 July 2012 that application was refused on paper as being totally without merit, with no right of renewal.

11.     On 27th June 2012 there was a further hearing in the Court of Protection which EC attended. The court declared on an interim basis that it continued to be in DO's best interests to reside at A Court. It was ordered that EC should be joined in those proceedings as the third respondent. The local Primary Care Trust, which I shall refer to as NPCT, had already been joined.

12.     However EC's application to become her brother's Litigation Friend and for a declaration that the Court of Protection had no jurisdiction in the matter were both dismissed as being devoid of merit. Directions were given as to evidence and for a further hearing in July.

13.     On 13th July 2012 a third claim form for judicial review against LBH was lodged in the Administrative Court signed by EC, again relating to the care of her brother. The decision to be reviewed was specified as both "failing to act and "acting without skills and competence and recklessly to mention a few". A number of different orders were sought including the extension of time to file medical evidence. That was on the basis that EC is of the strong view that the appropriate course is for DO to be taken to Germany to have a correct diagnosis and treatment of his illness. It had also sought to stay any further move away from EC as DO's carer. It was stated that reliance would be placed on the documentation filed in support of the first and second claim amongst other matters. Again, no acknowledgement of service has been served in respect of that claim.

14.     On 16th July 2012 there was a further hearing in the Court of Protection again in which EC appeared. The order records that the court had read statements filed and the care and contingency plans file relating to the proposal of DO to a hospital known as St Andrews in Northampton. The court declared in the interim that it was in DO's best interest to move to that hospital as soon as practicable.

15.     It was ordered that NPCT should become the applicant and LBH should become a respondent with permission to take no further part in those proceedings. The NPCT was ordered      to arrange for a report under section 49 of the Mental Health Act 2005 to be provided by the hospital to cover the diagnoses and progress of the illnesses of DO and his capacity to make decisions in respect of his residence and care in time for the next hearing which has been set for 19th October 2012. EC tells me there is a further application to the Court of Appeal in respect of that order. The court however itself has refused permission to appeal and an order for a stay pending appeal was also refused.

16.     On 19th July 2012 an order was made in the third claim by His Honour Thornton QC, refusing EC permission to permit EC to act as DO's litigation friend without further order. He referred to the proceedings as misconceived and ill constituted because any review of the Court of Protection orders should be made by way of application of that court order or that appeal. He directed that no further steps be taken in that claim, save for the service by the Official Solicitor of the letter sent to the court. He further ordered that the papers were then to be resubmitted to the judge to give further direction including whether a copy of any such letter should be provided to EC. Permission was given to EC to apply further by letter and a direction that she would be sent a copy of the court's direction and decision following a reconsideration of the papers. No such letter has been received by the Administrative Court from the Official Solicitor.

17.     On 15th August 2012 EC contacted the court to say it was unreasonable for the two cases not to be heard today on the 23rd August because there was no reason on which to refuse the cases to proceed. On 17th August 2012 she made her application to be added as the claimant which I have dealt with. On 21st August 2012 LBH applied for a general restraint order against EC. She says this morning that was not received by her and Mr Holbrook on behalf of LBH accepted there may be short service and accordingly did not seek to pursue that application today. Having dealt with a number of preliminary applications by EC, I then went on to consider whether permission should be given to proceed with the second and third claim.

18.     This oral application was listed in unusual circumstances, where no acknowledgement of service was served in either the second or third claim and where the issue of permission has not been considered on the papers in the usual way. In my judgment, despite the multi various grounds relied upon and the relief sought in these claims, at the heart of them was the same issue which lays at the heart of the first claim, whether it is EC who should be caring for her brother and making decisions on his behalf as to accommodation, care and treatment or whether such decisions should be taken by others. These are questions, in my judgment, which are also crucial in the ongoing Court of Protection proceedings in which EC is a party and in which she can and does make her representation. These are questions, in my judgment, which the Court of Protection with its expertise is particularly suited to deal with.

19.     The discretionary remedy of judicial review is one of last resort where there is no other remedy available. In my judgment it is not usually appropriate for such proceedings to continue in tandem with Court of Protection proceedings where in essence the same questions are being considered. There is nothing in the grounds of the second or third claim in my judgment, which makes the grant of permission to proceed appropriate. EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings.

20.     In making her oral submissions EC mentioned a further consideration and that is her claim that she has worked for LBH as DO's carer for a number of years and has outstanding claims for unfair dismissal and breach of contract. She made a claim to the Employment Tribunal for such remedies amongst others. The Employment Tribunal heard that claim on 9th July 2012. They dismissed all of the claims and ordered EC to pay the costs. She tells me today that yesterday or the day before she has filed an appeal to the Employment Appeals Tribunal in respect of that finding. Again, it seems to me that the course open to her in respect of those claims lies in other courts and other jurisdictions.

21.     Whilst I can sympathise with EC's concern over the welfare of her brother, which is clearly genuine and passionate, in these unusual circumstances and despite the lack of acknowledgement of service, in my judgment it is appropriate just and proportionate to refuse permission in the second and third claims and certify them as wholly without merit.

22.     THE DEPUTY JUDGE: Mrs C, if you wish to speak to Mr Holbrook about the matter I raised about assistance in getting telling to Northampton ‑‑

23.     THE CLAIMANT: Your Honour I'm appealing that decision. I am appealing the decision your Honour. I am appealing it straightaway.

24.     THE DEPUTY JUDGE: That is your prerogative Mrs C. Is there any other application?

25.     MR HOLBROOK: My Lord, yes. First of all, on the question of costs, can I ask the costs of these two applications be adjourned to be dealt with at the hearing of the application?

26.     THE DEPUTY JUDGE: You have heard Mrs C is on Income Support.

27.     THE CLAIMANT: Not only that your Honour ‑‑

28.     THE DEPUTY JUDGE: Just a moment, I will come to you in a moment. Does the Council really wish to pursue costs.

29.     MR HOLBROOK: My Lord, yes, having got an order, if it gets an order from the court it is up to the Council to decide whether or not to enforce it.

30.     THE CLAIMANT: Your Honour they are not entitled ‑‑

31.     THE DEPUTY JUDGE: Mrs C I am going to give you a chance in a moment, let me hear what Mr Holbrook is going to say.

32.     MR HOLBROOK: It will no doubt consider all matters before deciding to enforce.

33.     THE DEPUTY JUDGE: I hope it has considered all matters before deciding to apply for them.

34.     MR HOLBROOK: I am sorry my Lord?

35.     THE DEPUTY JUDGE: I hope it has considered all matters before deciding to apply for an order for costs.

36.     MR HOLBROOK: My Lord, yes, but there is nothing to prevent a local authority from getting a costs order against ‑‑

37.     THE DEPUTY JUDGE: I am not saying there is anything to prevent it, it is a question of whether in all these circumstances, with all the difficulties and all this litigation, it is going to help anyone.

38.     MR HOLBROOK: My Lord, let us for the sake of argument suppose that this claimant has resources that this court does not know about.

39.     THE DEPUTY JUDGE: Does the London Borough have any inkling that that may be the case?

40.     MR HOLBROOK: My Lord, I do not particularly wish to discuss matters like that today because I do not think that will be helpful for the further ongoing relationship that obviously needs to exist.

41.     THE DEPUTY JUDGE: Quite.

42.     MR HOLBROOK: But the point I am making is if a costs order is obtained by [LBH] then they may at sometime in the future discover this claimant have some resources.

43.     THE DEPUTY JUDGE: There is no application for costs before me, there is none in the acknowledgement of service because none has been filed. If a respondent to a claim for permission for judicial review wishes to apply for the costs which are usually limited to the acknowledgement of service, the usual place is to ask for them in the acknowledgement of service.

44.     MR HOLBROOK: I appreciate that. Earlier this morning I did make the point that the third judicial review claim has been stayed in any event and you have already recited in your judgment how the matters which are brought in the second and third claim are essentially the same as those which have been dealt with in the first claim.

45.     My Lord, I am not asking you to make an order for cost, all I am asking you to do is adjourn the question of costs.

46.     THE DEPUTY JUDGE: Where is the question of costs before me Mr Holbrook? There is no indication anywhere that such an application is going to be made.

47.     MR HOLBROOK: I make the application orally.

48.     THE DEPUTY JUDGE: You made the application orally for me to adjourn it.

49.     MR HOLBROOK: My Lord yes. If I leave court today with nothing in the order about costs, then under the rules that order will be deemed as being no order being made.

50.     THE DEPUTY JUDGE: Why was not an application made and why was not Mrs C put on notice of such an application.

51.     MR HOLBROOK: One always has to be mindful of the costs involved in dealing with these matters which I am bound to say, the costs which a local authority like [LBH] had to so far expend dealing with claims which you and a number of judges certified as wholly without merit, I submit is already been wholly disproportionate.

52.     I am merely asking you now to adjourn the question of costs.

53.     THE DEPUTY JUDGE: I am asking you why was this not put to Mrs C and why was she put on notice of any such application. I have not had an answer yet?

54.     MR HOLBROOK: My Lord the answer is because the local authority wishes to conserve its resources and that is why it did not respond to the second and third claims, other than by putting in an application for a civil restraint order.

55.     I only wish deal with one outstanding matter together. There is that question of cost. There is a second question about when the CRO matter is going to be dealt with. I do not know if it is possible for you today, or possibly for someone in court to make contact with the Administrative Court Office to get a hearing date possibly next week so that the claimant can leave court knowing that matter ‑‑

56.     THE DEPUTY JUDGE: Have you made enquiries as to availability? Mrs C said she has not been served with anything.

57.     THE CLAIMANT: I have not been served with anything since December. Nothing. I have nothing from them since December. It is foreseeable that I will come to court, there is no representation from them, there is no service by them and it is in breach of court rules for them to make me penniless, not to respond, no acknowledgement of service. On the 23rd February, no acknowledgement of service, no documentation, even at the employment law, they have not responded.

58.     THE DEPUTY JUDGE: Mrs C, I am sorry to cut you but I am not going to list this application until it has been served and it is a certificate of service.

59.     MR HOLBROOK: My question is only whether the court could make some enquiries to see if this matter be listed at a hearing date next day.

60.     THE DEPUTY JUDGE: Have you made enquiries?

61.     MR HOLBROOK: I have not.

62.     THE CLAIMANT: I will need a solicitor.

63.     THE DEPUTY JUDGE: I am not prepared to make enquiries Mrs C in the circumstances where you have not and whereas as I say I would need to be satisfied the application has been served.

64.     MR HOLBROOK: That brings me to the third point. That relates to the question of service. You heard me say this morning the papers were served by first class post on Tuesday. There are also enquiry agent went round to the claimant's but was not able to get a response.

65.     THE DEPUTY JUDGE: Is there an affidavit to that effect?

66.     MR HOLBROOK: What I was going to invite you to do, my Lord, is record on the court order today, that if my solicitor hands the bundle of papers which he attempted to give her this morning, he hands papers to her, that you could record in the order that service has been effective.

67.     My Lord, one of the reasons I ask for that is that because it is clear from the orders which have been made by the Court of Protection that service of documents has proved difficulty with this litigant. Indeed you may have seen the Court of Protection how it was directed she should go to the local authority offices to pick up the papers in order to ensure service was effective. I understand that did not happen, that the local authority had to take the papers in any event to the Court of Protection. But my Lord, it may be if the claimant is prepared to say here and now that she would accept a further copy of the bundle of papers which I have in court today.

68.     THE CLAIMANT: Your Honour, service of any document has not been a problem, what has been a problem is lack of service. They have not ‑‑

69.     THE DEPUTY JUDGE: Mrs C, what Mr Holbrook is offering to do now is hand you the application in respect of the civil restraint order now so that there is no problem, no doubt about service.

70.     THE CLAIMANT: Your Honour, I would prefer it to be put in the post and with honest belief that they have posted if I have nobody ... I cannot hang in the house thinking maybe somebody is going to post a letter to me, I cannot do that.

71.     THE DEPUTY JUDGE: Is it not better you simply accept it being handed over today?

72.     THE CLAIMANT: Your Honour, I cannot sit at home thinking: is somebody going to post letter? Their argument is unreasonable because they have not justified any claim, there is no evidence in front of the court that they have sent any application. There is no evidence in front of the court and they are always like that. They can post it, they can post it and then I will be on the lookout because I have a legitimate expectation.

73.     THE DEPUTY JUDGE: Why not receive it today?

74.     THE CLAIMANT: Because I cannot carry that as part of my ... they can send it. Now I know that a letter is coming to me. My address is 16 T Square.

75.     THE DEPUTY JUDGE: I am not prepared to make an order forcing Mrs C to accept today. It will have to be certified and served in usual way.

76.     Mr Holbrook is there anything else you wish to say about costs? I have to say in circumstances where no such application has been made it will usually be limited to the costs of the acknowledgement of service, there are no acknowledgement of service. In those circumstances, unless you wish to press me further I am not inclined to adjourn any oral application made today. (Pause).

77.     MR HOLBROOK: My Lord I will not push it any further.

78.     THE DEPUTY JUDGE: There will be no order as to costs. I am not ordering you to pay cost.

79.     THE CLAIMANT: I am very grateful your Honour. They have not served the court any document, they have not served any court document. It is unforeseeable to file application and without response and they are demanding for money and they have made me penniless. So they are coming to court after they have made me penniless, I can't see my brother, they have hijacked my brother and they are demanding money. This is part of their abuse.

80.     THE DEPUTY JUDGE: I have not made that order.

81.     THE CLAIMANT: I will be appealing this order immediately. Especially

the ones that are not... Thank your Honour.

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