Essex County Council v RF & Ors



Citation: [2015] EWCOP 1

This judgment from District Judge Mort provides some useful guidance on the level of damages to be awarded in Court of Protection proceedings for unlawful detention.

P was 91 year old gentleman, a retired civil servant, who had served as a gunner with the RAF during the war.  He had lived alone in his own house with his cat Fluffy since the death of his sister in 1998. He was described as being a very generous man ready to help others financially if he believed they needed it, as well as making donations to various charities.

He had dementia, and other health problems including difficulty in mobilising, delirium and kidney injury caused by dehydration.

In May 2013 P was removed from his home by the local authority and placed in a locked dementia unit. It was not clear that P lacked capacity at the time and he was removed without any authorisation. The local authority eventually accepted that that P had been unlawfully deprived of his liberty for a period amounting to approximately 13 months. A compromise agreement which included £60,000 damages for P’s unlawful detention was agreed between the parties.

In considering the level of compensation to which P was entitled, District Judge Mort made a distinction between cases involving procedural breaches and those involving substantive breaches:

“72. Procedural breaches occur where the authority’s failure to secure authorisation for the deprivation of liberty or provide a review of the detention would have made no difference to P’s living or care arrangements.

73.Substantive breaches occur where P would not have been detained if the authority had acted lawfully. Such breaches have more serious consequences for P.”

This case involved a substantive breach of P’s rights. If it hadn’t been the unlawful actions of the local authority, P would have continued to live at home with support arrangements in place. The deprivation of P’s liberty during given the late stage of his life compounded its poignancy.

District Judge Mort considered two previous cases involving damages for unlawful detention. In London Borough of Hillingdon v Neary [2011] EWHC 3522 (COP), a period of 12 months’ detention resulted in an award of £35,000 (no judgment being made public to accompany the consent order approved by the High Court). In A Local Authority v Mr and Mrs D [2013] EWCOP B34, District Judge Mainwaring-Taylor approved an award of £15,000 (plus costs) to Mrs D for a period of 4 months unlawful detention (together with £12,500 to her husband, together with costs).  In Mr and Mrs D, District Judge Mainwaring-Taylor had noted that this was towards the lower end of the range if the award in the Neary case was taken as the bench mark.

Taking these cases into account, District Judge Mort gave an indication that the level of damages for the unlawful deprivation of an incapacitated person’s liberty was between £3,000 and £4,000 per month.

District Judge Mort was also invited to consider the other terms of the compromise agreement, which included:

  • A declaration that the Council unlawfully deprived P of his liberty for period of approximately 13 months;
  • The Council would waive any fees payable by P to the care home in which he was detained for the period of his detention (a sum of between £23,000 and £25,000);
  • The Council to exclude P’s damages award from means testing in relation to P being required to pay a contribution to his community care costs;
  • The payment of all P’s costs, to be assessed on the standard basis.

The judge approved the compromise agreement as representing a fair and reasonable award so far as a monetary award can compensate him for the loss of his liberty in the circumstances.

Comment

There are currently very few public judgments giving guidance as to the level of damages to be awarded for unlawful deprivations of liberty. This judgment is a welcome addition to the sparse examples available. The guideline of £3,000 to £4,000 per month is a useful indicator for COP practitioners seeking to advise on quantum of damages likely to be recovered for an unlawful deprivation of liberty and for parties seeking to agree a compromise agreement where liability is admitted.

In this case, the approved award appears to lie at the higher end of the spectrum. P was unlawfully deprived of his liberty for a minimum of 13 months (which was conceded by the local authority) and arguably for 17 months. The £60,000 award would place the level of damages at between £3,500 and £4,600 per month. There were a number of factors which made this case particularly serious. P was removed from his home of 50 years and locked in a dementia unit against his wishes. Subsequent assessments concluded that P had capacity to return home and should be assisted to return home but were ignored by the local authority. Moreover, the local authority maintained their resolute opposition to P returning home until the last possible moment. The local authority’s actions were – entirely understandably on the basis of the judgment – described by the judge as “reprehensible,” “substandard” and “inexcusable.”

CategoryCOP jurisdiction and powers - Damages Date

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